The rapid increase in technology has made the protection of innovation a key determinant of economic success. How governments approach that protection, however, requires a compromise between two conflicting goals. The owners of intellectual property-the tangible results of innovation, including patents, trademarks and copyright-have a natural interest in enjoying exclusive rights to their innovation as long as possible. A reasonably long period of exclusive rights, therefore, can act as a powerful incentive to innovation. Consumers and competitors, on the other hand, would prefer that the fruits of innovation be made generally available as quickly as possible, so that competition will both reduce prices and lead to further innovation. Most national intellectual property regimes reflect compromises between these two objectives.
The rapid internationalization of the global economy and of technology has pointed to the problems that result from differing approaches to the protection of intellectual property. Over the years, various international agreements and organizations, including the Berne Convention (literary and artistic works); the Geneva Convention (phonograms); the Rome Convention (neighbouring rights); the Universal Copyright Convention; the Paris Convention (industrial property); the International Convention for the Protection of New Varieties of Plants (UPOV); and the World Intellectual Property Organization (WIPO) have sought to address these differences, with a view to promoting global standards and procedures.
The Uruguay Round Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) successfully consolidates most of these disciplines into a single undertaking, backed up with enforceable dispute settlement measures. For the NAFTA countries, many of these rules were already reflected in law as a result of that Agreement. NAFTA chapter seventeen on intellectual property anticipated many of the provisions of the TRIPs Agreement, requiring each country to provide a high level of minimum protection for intellectual property rights (IPRs) relating to a wide range of subject matter such as inventions, industrial designs, trade secrets, test data, trademarks, geographical indications on goods, plant varieties, integrated circuit topographies, computer programs, data bases, encrypted program-carrying satellite signals, phonograms and creative works like films, novels and musical compositions. The most significant changes that go beyond the NAFTA relate to added protection for geographical indications in respect of wines and spirits and for the protection of a performer's right in respect of phonograms.
The Agreement contains seven distinct parts. Part I deals with general provisions and basic principles. Article 1 allows WTO members to determine the appropriate method of implementing the TRIPs agreement within their own legal system and practice. Article 1 also requires members to give to the nationals of other members the national treatment required by the Paris Convention, the Berne Convention, the Rome Convention, and the Treaty on Intellectual Property in Respect of Integrated Circuits (the IPIC Convention). Article 3 would allow members to rely upon the national treatment exceptions contained in these same treaties. Article 2 requires compliance with the substantive provisions of the Paris Convention. Article 9 requires compliance with the substantive obligations of the Berne Convention (1971), other than for moral rights. Article 4 obliges members to provide most-favoured-nation treatment in respect of IPRs, subject to certain exceptions.
Part II deals with standards concerning the availability, scope and use of IPRs and is divided into eight sections as follows:
Copyright and related rights-Article 9 requires members to comply with the substantive provisions of the Berne Convention (1971), other than those relating to moral rights. Article 10 requires protection for computer programs and for compilations of data. Article 11 requires rental rights for computer programs and cinematographic works if, in respect of the latter, there is widespread copying which impairs the authors' rights. Article 14(1) requires protection for performer's rights in respect of the unauthorized fixation and reproduction of phonograms; it also requires protection against unauthorized broadcasting of performances. Article 14(2) requires protection for producers of phonograms, and Article 14(3) requires protection for broadcasting organizations or for authors against unauthorized broadcasts.
Trademarks-Article 15 requires protection for traditional trademark subject matter, such as signs, words and names. Article 16 confers a right against using such trademarks where a likelihood of confusion would result. Article 19 requires a minimum period of three years of non-use before a trademark may be expunged for non-use.
Geographical indications-Article 22 defines geographical indications and prevents their use in connection with a good in such a manner as to mislead the public as to the geographical origin of the good. Article 23 requires prevention against the use of geographical indications identifying wines and spirits which did not originate in the place indicated in the geographical indication. Article 24 provides for a number of exceptions,such as geographical indications which have been in use for at least ten years and geographical indications which are identical with terms customary in the common language.
Industrial designs-Articles 25 and 26 require the protection of new and original industrial designs.
Patents-Article 27 requires patent protection for new and useful inventions without discrimination as to field of technology. Article 31 imposes the conditions under which use of an invention may be made without the authorization of the patentee. Article 33 requires a term of protection for at least 20 years from the date of filing an application for patent protection.
Integrated circuits-Article 35 requires protection for layout designs of integrated circuits in accordance with the IPIC Convention. Article 37(2) restricts the use which a government may make of such designs.
Undisclosed information-Article 39 requires the protection of undisclosed information, including test data submitted to governments for the purpose of approving the marketing of pharmaceutical or agricultural chemical products.
Anti-competitive practices-Article 40 provides that WTO Members may provide in their national legislation for the prevention of anti-competitive licensing practices in respect of IPRs.
Part III of the TRIPs agreement deals with the enforcement of IPRs and is divided into five sections as follows:
General obligations-Article 41 requires, at a minimum, judicial review for final administrative decisions in respect of IPRs.
Civil and administrative procedures and remedies-Article 42 requires civil judicial procedures for enforcing IPRs, and Article 43 requires evidence of proof. Article 44(1) allows for injunctive relief, including the prevention of imported goods from entering the state. Article 44(2), however, allows members to limit such relief to compensation for use without authorization of the right holder (as contained in Article 31 of the TRIPs Agreement). Article 46 requires measures to be taken against counterfeit trademark goods.
Provisional measures-Article 50 allows a member to adopt ex parte procedures, as a provisional measure, to prevent irreparable harm to the holder of the IPR.
Special requirements related to border measures-Articles 51 through 60 allow a member to authorize its customs authorities to prevent the free circulation of goods suspected of a counterfeit trademark or of being pirated copyright goods, upon the application of the holder of an IPR.
Criminal procedures-Article 61 requires criminal procedures for willful trademark counterfeiting or copyright piracy on a commercial scale.
Part IV of the TRIPs agreement provides for the acquisition and maintenance of IPRs and related inter-partes procedures. Article 62 allows members to require registration before granting IPRs.
Part V deals with dispute avoidance and settlement. Article 63 requires all laws and final decisions concerning IPRs to be published. Article 64 applies the dispute settlement provisions of Articles XXII and XXIII of the GATT 1994 to IPR disputes.
Part VI contains certain transitional arrangements. Article 65(1) requires developed countries to implement the TRIPs agreement within one year of the coming into force of the WTO. Article 65(2) allows developing countries an additional four years; and Article 66 allows least developed countries an additional ten years.
Part VII is entitled `Institutional Arrangements: Final Provisions'. Article 68 allows the Council for TRIPs to monitor the Agreement, in consultation with other bodies, such as WIPO. Article 69 requires members to cooperate with one another in eliminating international trade in goods which infringe IPRs. Article 70 requires protection, under the Berne Convention for subject matter which was already in existence at the time of entry into force of the TRIPs agreement.