Trips and COpyright.pptx

8/10/2019 Trips and COpyright.pptx

1/34

TRIPS AND COPYRIGHT

Analysis of the origin of TRIPS,fundamental principles and the relevant provisions dealing


2/34

Rationale:

Trade and intellectual property protection areconnected.

The achievements in trade liberalisation throudisciplines on and removal of trade barriers, cgreatly undermined if IP rights related to the trgoods or services are not respected in the expor in the country of origin of imports.


3/34

Background:

International agreements to strengthen and hprotection in the field of IP law exist since the nineteenth century.

They were fragmented in their coverage of IP lacked effective enforcement standards and the settlement of disputes; and they often hadlimited membership.


4/34

The TRIPS Agreement was negotiated to addresparticular problems.

Developed countries in general, and the Unitedparticular, were the driving force behind thesenegotiations.

Developing countries objected to the inclusion onegotiations on IP protection on the Uruguay Ro

agenda and would never truly embrace thesenegotiations. They came to realise that they weoff with multilateral disciplines than being subjecbilateral pressure to improve IP protection.


5/34

Objectives and Principles:

To reduce distortions and impediments to intetrade..taking into account the need to promeffective and adequate protection of intellecproperty rights, and to ensure that measures aprocedures to enforce intellectual property rig

themselves become barriers to legitimate trad


6/34

Article 7 of TRIPS Agreement, entitled Objectivreflects the rationale of the TRIPS Agreement tobalance between these competing goals.

The protection and enforcement of intellectualrights should contribute to the promotion oftechnological innovation and the transfer anddissemination of technology, to the mutual adv

of producers and users of technological knowlein manner conducive to social and economic wand to a balance of rights and obligations.


7/34

Scope of Application


8/34

Substantive Scope

The Agreement does not define what IntellecProperty is. Instead it only specifies which caterights are covered by its provisions.

Article 1.2 provides that the term intellectual prefers to all categories of intellectual property

include: copyright and related rights; trademageographical indications; industrial design; palayout designs of integrated circuits and proteundisclosed information.


9/34

Does not cover all the aspects of IP Protectioncovered categories.

Other aspects of IP rights that are not mentionTRIPS Agreement or in the incorporated provisWorld Intellectual Property Organisation (WIPOconventions are also excluded from the purvieAgreement.


10/34

Temporal Scope

Article 70 of the TRIPS Agreement deals with the pr

existing subject matter.

Article 70.1 specifies certain acts which do not giveobligations under the Agreement. Also does not apretroactively to acts that occurred before its date application for a Member.

Article 70.2 provides that the Agreement does creaobligations in respect of subject-matter that existeddate of application.


11/34

General Provisions and

Principles of TRIPS

Agreement


12/34

Part I of the Agreement contains the general and basic principles that apply to all coveredIP.

Article 1.1 obliges Members to give effect toprovisions. However, it expressly states that Mefree to determine the appropriate method oimplementing their obligations under the Agrewithin their own legal systems and practice.


13/34

In addition, it provides that Members are free,obliged, to implement more extensive protec

that required by the Agreement.

Firmly establishes that the nature of TRIPS Agresetting a minimum level of IP protection.

The flexibility is an important tool in balancincompeting policy goals. However, strings atta


14/34

Relationship between T

and WIPO Conventions


15/34

Builds upon the standards of IP protection ensthe IP conventions administered by WIPO.

TRIPS supplements and innovates the rules of rWIPO conventions, as well as expressly provideadditional protection in some cases.

Creates an obligation under municipal law fo

to have a system in place to ensure the enforthe protected IP rights, and links them to the eand binding dispute settlement of the WTO.


16/34

Article 2 of the Agreement, states that the Meshould comply with Articles 1 to 12 and 19 of tConvention in respect of Parts II, III and IV of thAgreement.

WTO Members that are not parties to the ParisConvention must comply with these provisions


17/34

National Treatment Obligation

National treatment obligation of the TRIPS Agrunder Article 3.1 requires each Member to acnationals of other Members treatment no lessfavourable than it accords to its own nationarespect of IP protection.

Article 3 of the Agreement applies to nationadefined in Article 1.3, rather than to like produlike services or service providers.


18/34

ECTrademarks and GeographIndications (2005)

The issue involved an EC regulation with two sdetailed procedures for the registration of GeIndications for agricultural and food products

First was applied to the names of geographic

located in the European Communities. The seapplied to the names of geographical areas outside the European Communities.


19/34

Additional conditions required that a third couprovide reciprocal and equivocal protection those available in European Communities.

Claimed that the EC Regulation was inconsistethe national treatment obligation under ArticlTRIPS, because it imposed conditions of reciprequivalence on the availability of protection.

Observed that, Article 3 prohibits not only meawhich prima faciediscriminate between the na Member and foreign nationals, but also de discriminatory measures.


20/34

Difference in treatment affected the effectivof opportunities between the nationals of othMembers and the European Communities nawith regard to the protection of IP rights, to th

detriment of nationals of other Members.


21/34

Decision

Equivalence and reciprocity conditions of theRegulation were held by the panel to modify effective equality of opportunities to obtain pof intellectual property. Those conditions, accthe panel, constituted a significant extra-hurdobtaining GI protection that did not apply togeographic areas located within the EuropeaCommunities.


22/34

The panel found that these conditions in the Rrestrict the availability of GI protection, and thArticle 3.1 because the treatment accorded tgroup of nationals of other Members was diffe

and less favourable than, that accorded to thEuropean Communities nationals.

However, Article 5 provides that the national tobligation of Article 3 does not apply to proce

the acquisition of IP rights provided in multilateagreements negotiated under the auspices o


23/34

Most-Favoured-Nation TreatmenObligation

Article 4 contains the MNF obligations which rthat any advantage, favour, privilege or immuregard to IP protection granted by a Membernationals of any other country be accordedimmediately and unconditionally to the nationother Members.

Members are required to provide MNF treatmwith respect to categories of IP rights coveredAgreement.


24/34

None of the pre-existing IP conventions contatreatment obligation. TRIPS introduces this for ttime.

MNF is the key to the multilateral trading systembe accorded the same significance with respintellectual property rights under the TRIPS thalong been accorded with respect to trade in under the GATT.

In a word, this is fundamental.


25/34

This obligation is subject to exceptions.

Advantages granted by a Member that are d

from international agreements on judicial assislaw enforcement need not be granted to all M

Also the advantages under Rome ConventionBerne Conventionon condition of reciprocity

excluded from the coverage of the MNF obligTRIPS Agreement.


26/34


27/34

The Three Approaches

National exhaustion - first sale of product exhausts IP right

the resale of the product only on the national market

Regional exhaustion - first sale of product in a country thato regional agreement exhausts IP rights to control furthedistribution in other parties to the regional agreement

International exhaustion - once a product is sold by or witconsent of the right holder, whether on the domestic maforeign market, the IP rights to control the further distributproduct are exhausted both domestically and internatio


28/34

TRIPS does not mandate a particular approacexhaustion of IP rights.

Article 6 expressly provides that nothing in thisAgreement, leaving aside the obligations of ntreatment and MFN treatment, shall be used tthe subject-matter of exhaustion of IP rights.

The Doha Declaration on the TRIPS Agreemen

Public Health clarified that Members cannot bchallenged in WTO dispute settlement under tAgreement for allowing the international exharights, and therefore permitting parallel impor


29/34

Substantive ProtectionIntellectual PropertyRights under TRIPS:

Copyright and RelateRights


30/34

Section 1 of part II of TRIPS deals with copyrighrelated rights.

Article 9.1 of the Agreement expressly incorpoArticles 1 to 21 of the Berne Convention.

Article 10 of the TRIPS confirms that copyright covers two new types of works, namely comp

programs and compilations of data, and clariprotection is to be applied to them.


31/34

Under both the Berne Convention and TRIPS, ever

free to determine the level of originality or artistic c

required for the work subject to copyright protecti

Copyright protection is not granted indefinitely, bu

to a particular term of protection. The minimum te

protection is the life of the author plus fifty years a

With regard to the duration, when it is calculated

other than the life of a natural person, according

of the Agreement, such term shall not be less than

from the end of the calendar year of authorised por, failing such authorised publication within fifty ye

the making of the work, fifty years from the end of

year of making.


32/34

Article 13 of TRIPS constitutes a binding guidelMembers. It lays down the requirements that eand limitations to exclusive rights provided for IP law have to meet. The rationale behind this

search for the appropriate balance betweenof the creators and public interest in access tocopyrighted works

The exceptions provided in Berne Convention

relied upon regardless of Article 13 and also wlimitation or an exception conflicts with a normexploitation of a work must be judged for eacright individually.


33/34

Under Article 14 of the Agreement, special rigto performers, producers of phonograms andbroadcasting organisations. According to Arti

performers have the exclusive right to authorisfixation. Article 14.3 provides that the broadcaorganisations have the right to prohibit the re-rebroadcasting of broadcasts.


34/34

THANK YO

Date post:	02-Jun-2018
Category:	Documents
Upload:	adcoelum
View:	217 times
Download:	0 times

Trips and COpyright.pptx

Documents