From Wikipedia:
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation. It was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in 1994.
Specifically, TRIPS contains requirements that nations' laws must meet for: copyright rights, including the rights of performers, producers of sound recordings and broadcasting organizations; geographical indications, including appellations of origin; industrial designs; integrated circuit layout-designs; patents; monopolies for the developers of new plant varieties; trademarks; trade dress; and undisclosed or confidential information. TRIPS also specifies enforcement procedures, remedies, and dispute resolution procedures.
The TRIPS agreement introduced intellectual property law into the international trading system for the first time, and remains the most comprehensive international agreement on intellectual property to date. In 2001, developing countries concerned that developed countries were insisting on an overly-narrow reading of TRIPS, initiated a round of talks that resulted in the Doha Declaration: a WTO statement that clarifies the scope of TRIPS; stating for example that TRIPS can and should be interpreted in light of the goal "to promote access to medicines for all."
TRIPS has been criticised by the alter-globalization movement, regarding for example its consequences with regards to the AIDS pandemic in Africa.
Background and history
TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) treaty in 1994. Its inclusion was the culmination of a program of intense lobbying by the United States, supported by the European Union, Japan and other developed nations. Campaigns of unilateral economic encouragement under the Generalized System of Preferences and coercion under Section 301 of the Trade Act played an important role in defeating competing policy positions that were favoured by developing countries, most notably Korea and Brazil, but also including Thailand, India and Caribbean Basin states. In turn, the United States strategy of linking trade policy to intellectual property standards can be traced back to the entrepreneurship of senior management at Pfizer in the early 1980s, who mobilized corporations in the United States and made maximizing intellectual property privileges the number one priority of trade policy in the United States (Braithwaite and Drahos, 2000, Chapter 7).
After the Uruguay round, the GATT became the basis for the establishment of the World Trade Organization. Because ratification of TRIPS is a compulsory requirement of World Trade Organization membership, any country seeking to obtain easy access to the numerous international markets opened by the World Trade Organization must enact the strict intellectual property laws mandated by TRIPS. For this reason, TRIPS is the most important multilateral instrument for the globalization of intellectual property laws. States like Russia and China that were very unlikely to join the Berne Convention have found the prospect of WTO membership a powerful enticement.
Furthermore, unlike other treaties on intellectual property, TRIPS has a powerful enforcement mechanism. States can be disciplined through the WTO's dispute settlement mechanism.
The requirements of TRIPS
TRIPS requires member states to provide strong protection for intellectual property rights. For example, under TRIPS:
- Copyright terms must extend to 50 years after the death of the author, although films and photographs are only required to have fixed 50 and to be at least 25 year terms, respectively.(Art.7(2),(4))
- Copyright must be granted automatically, and not based upon any "formality", such as registrations or systems of renewal.
- Computer programs must be regarded as "literary works" under copyright law and receive the same terms of protection.
- National exceptions to copyright (such as "fair use" in the United States) must be tightly constrained.
- Patents must be granted in all "fields of technology," although exceptions for certain public interests are allowed (Art. 27.2 and 27.3 [1]) and must be enforceable for at least 20 years (Art 33).
- Exceptions to patent law must be limited almost as strictly as those to copyright law.
- In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs signatories by the principles of national treatment (with certain limited exceptions, Art. 3 and 5 [2]). TRIPS also has a most favoured nation clause.
Many of the TRIPS provisions on copyright were imported from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were imported from the Paris Convention for the Protection of Industrial Property.
Controversy
Since TRIPS came into force it has received a growing level of criticism from developing countries, academics, and Non-governmental organizations. Some of this criticism is against the WTO as a whole, but many advocates[attribution needed] of trade liberalization also regard TRIPS as bad policy. TRIPS' wealth redistribution effects (moving money from people in developing countries to copyright and patent owners in developed countries) and its imposition of artificial scarcity on the citizens of countries that would otherwise have had weaker intellectual property laws, are a common basis for such criticisms.
Access to essential medicines
The most visible conflict has been over AIDS drugs in Africa. Despite the role which patents have played in maintaining higher drug costs for public health programs across Africa, this controversy has not led to a revision of TRIPs. Instead, an interpretive statement, the Doha Declaration, was issued in November 2001, which indicated that TRIPs should not prevent states from dealing with public health crises. After Doha, PhRMA, the United States and to a lesser extent other developed nations began working to minimize the effect of the declaration.
A 2003 agreement loosened the domestic market requirement, and allows developing countries to export to other countries where there is a national health problem as long as drugs exported are not part of a commercial or industrial policy [3]. Drugs exported under such a regime may be packaged or colored differently to prevent them from prejudicing markets in the developed world.
In 2003, the Bush administration also changed its position, concluding that generic treatments might in fact be a component of an effective strategy to combat HIV. Bush created the PEPFAR program, which received $15 billion from 2003-2007, and was reauthorized in 2007 for $30 billion over the next five years. Despite wavering on the issue of compulsory licensing, PEPFAR began to distribute generic drugs in 2004-5.
Software and business method patents
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Another controversy has been over the TRIPS Article 27 requirements for patentability "in all fields of technology", and whether or not this necessitates the granting of software and business method patents.
Implementation in developing countries
The obligations under TRIPS apply equally to all member states, however developing countries were allowed extra time to implement the applicable changes to their national laws, in two tiers of transition according to their level of development. The transition period for developing countries expired in 2005. The transition period for least developed countries was extended to 2016, and could be extended beyond that.
Developing countries are massive net-exporters of copyright-, patent- and trademark-related royalties. It has therefore been argued that the TRIPS standard of requiring all countries to create strict intellectual property systems will be detrimental to poorer countries' development.[4] Many argue[attribution needed] that it is, prima facie, in the strategic interest of most if not all underdeveloped nations to use any flexibility available in TRIPS to write the weakest IP laws possible.[attribution needed]
This has not happened in most cases. A 2005 report by the WHO found that many developing countries have not incorporated TRIPS flexibilities (compulsory licensing, parallel importation, limits on data protection, use of broad research and other exceptions to patentability, etc) into their legislation to the extent authorized under Doha. [5]
This is likely caused by the lack of legal and technical expertise needed to draft legislation that implements flexibilities, which has often led to developing countries directly copying developed country IP legislation [6], or relying on technical assistance from the World Intellectual Property Organization (WIPO), which, some say[attribution needed], encourages them to implement stronger intellectual property monopolies.
Post-TRIPs expansionism
The requirements of TRIPS are, from a policy perspective, extremely stringent. Despite this, lobbyists for the industries that benefit from various intellectual property laws have continued since 1994 to campaign to strengthen existing forms of intellectual property and to create new kinds:
Panel reports
According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005 page 142 [7], in the first ten years, 25 complaints have been lodged leading to the panel reports and appellate body reports on TRIPS listed below.
The WTO website has a gateway to all TRIPS disputes (including those that did not lead to panel reports) here [8].
- 2005 Panel Report [9]:
- 2000 Panel Report [10], Part 2 [11] and 2000 Appellate Body Report [12]:
- Canada - Term of Patent Protection.
- 2000 Panel Report, Part 1 [13] and Part 2 [14]:
- 2000 Panel Report [15]:
- Canada - Patent Protection of Pharmaceutical Products.
- 2001 Panel Report [16] and 2002 Appellate Body Report [17]:
- 1998 Panel Report [18]:
- India - Patent Protection for Pharmaceutical and Agricultural Chemical Products.
- 1998 Panel Report [19]:
- Indonesia - Certain Measures Affecting the Automobile Industry.
See also
References
- Braithwaite and Drahos, Global Business Regulation, Cambridge University Press, 2000
External links
- World Trade Organization links
News:
TECHNOLOGY IN INDIA AND CHINA
Imitate or die
Nov 8th 2007
From The Economist print edition
Invention is costly and frustrating work. India and China have better things to do
http://www.economist.com/specialreports/displaystory.cfm?story_id=10053234&CFID=28245832&CFTOKEN=84102940
CHINA makes computers, but imports most of its chips. India makes drugs, but copies almost all of the compounds; it writes software, but rarely owns the result. The bolder claims made for all three industries thus have a similar, hollow ring. They have flourished, but mostly on the back of other countries' technology. “We are not at the stage of Intel Inside,” admits Arvind Atignal of Clinigene, a clinical-research firm, drawing his own analogy between desktops and drugs. “We are the keyboard, screens and peripherals.”
How much does this matter? Joseph Xie of SMIC, the Chinese chipmaker, spent seven years working inside Intel. Its strategy, he says, was simple: “get there first; make most of the money; let the second guy get the change.” That is certainly one way to run a technology firm. But competing in that race is expensive and exhausting. Few of Intel's rivals still try to keep up with it, nanometre by nanometre.
Countries of China's and India's heft and ambition cherish the idea of pushing back the limits of technology. But that push is risky, costly, frustrating work. A country shouldn't do it unless it has to. Although China and India could devote their considerable intellectual resources to solving the problems faced by economies on the technological frontier, why cross that bridge until you reach it? Seen in this light, India's generic drugmakers are models not laggards. They invest in just enough know-how to exploit the rest of the world's discoveries. Thanks to them, Indians enjoy some of the world's cheapest medicines.
Under the WTO's Trade-Related Intellectual Property Rights agreement (TRIPS), India has ceded the right to free-ride on foreign advances (see article). It now grants 20 years of patent protection to inventions hatched after 1995. In return, it hopes tighter laws will inspire Indians to new exploits in innovation, and reassure foreigners wary of inventing or making original products in the country.
The tougher laws may yet succeed. A recent study by Bruce Abramson of the World Bank expresses high hopes. A “patent chic” is already detectable in the country, he reports. He has even heard of Indian farmers calling lawyers in the hope of patenting their prize vegetables.
But, as yet, the new regime has not proved its worth. Over 17,000 patent applications were filed in India in 2004-05, almost 40% more than the year before. But only 3,500 were by Indians. Of the 49 most prolific filers in the past decade, 44 are either foreign companies or subsidiaries. Of the five Indian firms, all are either government-sponsored institutes or generic-drug companies, which did fine before TRIPS.
The new regime will be costly to run, if India takes it seriously. But the larger cost lies in the opportunities for unabashed imitation that India has now forgone. These lost opportunities might be quite big. Had Indian firms been prevented from copying fluoroquinolones, for example, the Indian public would have been worse off by the equivalent of $255m a year, reckons a study of the antibiotics market by Shubham Chaudhuri of the World Bank, Pinelopi Goldberg of Yale and Panle Jia of the Massachusetts Institute of Technology.
Drawing in the tail
India could resolve not to invent another thing, and still prosper mightily. It does not even have to catch up with the world; as noted earlier, it has much to gain merely by catching up with itself. A report by the World Bank (“Unleashing India's Innovation”) cast its eye over thousands of Indian enterprises—makers of drugs, foods, car parts and textiles, as well as metal-bashers and garment-weavers. In each industry, it found a thick clump of unproductive companies operating far behind the industry's vanguard. In garment-making, for example, the bank found a few highly productive companies, in which the value-added per worker was over 600,000 rupees in 2004. But in over 60% of the industry, that figure was less than 100,000 rupees. Even ignoring the very best firms, the bank still found a leading group in each industry that was about five times as productive as the average firm. It calculates that India's national output could be 4.8 times bigger than it is if only enterprises were “to absorb and use the knowledge that already exists in the economy.”
Learning new tricks is not the only way to thrive. China may have stopped inventing things (clocks, compasses, gunpowder and so on) after the 15th century. But it did not stop growing. The empire found fresh farmland to till, using the same old techniques, and new markets to exploit, selling the same old goods. Likewise today's China still enjoys a lot of scope for “extensive” growth—doing more with more—as well as “intensive” growth—doing more with less. “China is very much a top-line country,” says Max von Zedtwitz of Tsinghua University in Beijing. Although outlays on R&D are increasing, many people still appreciate size over sophistication. In the scramble to grow, a company that sets aside precious resources for research can be at a disadvantage. By the time its investment pays off, the firm's rivals might be twice as big. “They will acquire you,” says Mr von Zedtwitz.
Technological pursuits have opportunity costs. Other, perhaps more lucrative, uses can always be found for the resources so expended. That is why no firm in China is betting billions on a risky search for the next blockbuster drug. “If I had even a hundredth of that kind of money,” says Hai Mi of WuXi PharmaTech, a pharmaceutical firm in Shanghai, “I'd rather open a restaurant.”
Links from KookyPlan
- Doha trade round [edit] Delivering on Doha: Farm Trade and the Poor by Kimberly Ann Elliott
- TRIPS [edit] From Wikipedia: The Agreement on Trade Related Aspects of Intellect
- WTO [edit] ! WTO an international organization designed to supervise and liberalize inte
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