Agreement on Trade-Related Aspects of Intellectual Property Rights

from Wikipedia, the free encyclopedia

The Agreement on Trade-Related Aspects of Intellectual Property Rights , or TRIPS Agreement ( English Agreement on Trade-Related Aspects of Intellectual Property Rights ; French Accord sur les aspects des droits de propriété intellectuelle qui touchent au commerce ) is an international agreement in the field of Intellectual property rights . It lays down minimum requirements for national legal systems. This is to ensure that the policies and procedures used to enforce intellectual property rights do not in themselves become barriers to legitimate trade.

Significance of the TRIPS Agreement

The basic principles of the TRIPS agreement are national treatment, equal treatment of all members of the member states, and balanced protection to promote technical innovation and technology transfer. Both manufacturers and users should benefit and economic and social prosperity should be increased.

The TRIPS Agreement regulates areas of law such as:

The TRIPS agreement requires the member states to meet minimum criteria and a. in the following areas:

  • Copyrights must be maintained for at least 50 years from the end of the calendar year in which the work was published.
  • Copyrights arise automatically. You do not need any formality such as registration or an application for an extension.
  • Regardless of their form, computer programs must be viewed as works of literature in the sense of copyright law and must therefore be given the same protection.
  • National exceptions to copyright law (such as fair use in the USA ) or other restrictions are generally limited by the so-called three-stage test (Art. 13 TRIPS; Art. 9 Paragraph 2 of the Berne Convention with regard to the right of reproduction).
  • Patents must be granted in all technical fields. However , there is no internationally valid definition of “ technicality ”.
  • Exceptions to the exclusive rights must be limited in such a way that the normal exploitation of the copyright work may not be impaired (Art. 13) and not inappropriately contradict the normal exploitation of a patent (Art. 30).
  • In any state, the scope of intellectual property protection must not grant citizens of its own state more rights or benefits than citizens of other contracting states. This is also called national treatment . The TRIPS agreement also has a most favored nation clause , i. This means that a benefit that benefits citizens of one state must also benefit citizens (or companies or other legal entities) of another state.

The TRIPS provisions in the area of ​​copyright refer to the Berne Convention for the Protection of Works of Literature and Art in the version of the Stockholm Revision Conference 1971. Exceptions are computer programs and data collections (Art. 10 TRIPS, so-called "Berne Plus Approach"). However, moral rights are not covered. With regard to related rights, the TRIPS Agreement refers to the Rome Agreement 1961.

Since the treaty only imposes minimum standards on the member states, many states grant further rights. For example, in Germany ( § 64 UrhG) and all other EU states (Art. 1 of Directive 2006/116 / EC ), copyright only expires 70 years after the author's death, while Art. 12 of the TRIPS Agreement only expires 50 years from publication of the work.

history

The emergence of the TRIPS Agreement is closely linked to the work of the Intellectual Property Committee , an association of 13 US high-tech companies that campaigned around the world for a link between intellectual property and free trade. After intellectual property had previously been viewed exclusively as a task of the World Intellectual Property Organization (WIPO), TRIPS became an agreement within the framework of the World Trade Organization (WTO).

GATT

The TRIPS Agreement was added to the General Agreement on Tariffs and Trade (GATT) at the end of the Uruguay Round in 1994. The inclusion of the TRIPS Agreement was mainly at the urging of the United States, supported by the EU, Japan and other First World countries. The campaigns of unilateral economic encouragement (under the General System of Preferences) and coercion (under Section 301 of the Trade Act ) also had an impact . The American strategy of linking commercial guidelines with intellectual property guidelines originated in the 1980s in the top management of Pfizer Inc., a global pharmaceutical company. Pfizer mobilized twelve other international US companies and joined with them in the Intellectual Property Committee (IPC). The IPC lobbyed to make maximizing intellectual property privileges a top priority of US trade policy.

After the Uruguay Round , the GATT became the basis of the WTO. Since the ratification of the TRIPS Agreement is mandatory for WTO membership, every state that wants to gain access to the markets of the WTO members has to implement the very strict regulations of the intellectual property of the TRIPS Agreement into national law.

WTO

In addition, unlike other international agreements, the TRIPS Agreement has a powerful enforcement mechanism. States that do not make their legal systems for intellectual property TRIPS-compliant can be disciplined by the WTO dispute settlement mechanism, which enables trade sanctions to be imposed on renegade states.

criticism

Since the TRIPS Agreement came into force, the WTO has had to deal with increasing criticism from developing countries, academics and non-governmental organizations ( NGOs ). Peter Drahos describes TRIPS as the result of a lobbying process by multinational companies such as Pfizer and IBM with the aim of establishing global monopolies for the exploitation of business ideas, inventions and discoveries. The setting of innovation incentives would be at the expense of the diffusion of knowledge, which would lead to an inefficient distribution of resources overall.

Other critics, especially from the USA, do not think that the protection of intellectual property through TRIPS goes far enough. A greater consideration of developing countries in the framework of the TRIPS agreement could therefore lead to economic sanctions and the protection of intellectual property rights outside the TRIPS framework playing a greater role.

Medication

The most violent controversy so far took place over AIDS drugs for Africa. Despite the in the opinion of the critics unacceptable role that patents played in the undermining of the public health system in Africa, the TRIPS Agreement was amended in 2005, only slightly in the opinion of the critics, by the appendix Article 31 to Article 31. This was done in the context of the Doha Declaration , which was issued in November 2001 , an explanatory statement which indicates that the TRIPS Agreement should not prevent member states from coping with crises in the public health system (any more). Critics now believe that since then the United States (and, to a lesser extent, other developed nations) have been working, at the behest of PhRMA , to minimize the impact of this statement .

This is countered, but it should not be overlooked that the majority of drugs are not (no longer) patented, and that these unpatented drugs are not sufficiently available everywhere in Africa for various reasons. One reason is the lack of infrastructure in many African countries. Another problem is widespread corruption; Even medicines made cheaply available did not necessarily reach patients in the so-called developing countries, but were instead exported. Under market conditions, investments by private companies in research and development are only to be expected if the costs can be covered and profits can be made.

Software patents

On the occasion of the debate on the new regulation of software patents, the American delegation expressed the opinion that it is not possible under TRIPS Article 27 to completely ban software patents .

The German Federal Patent Court makes it clear:

“The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) does not lead to a different assessment of patentability either. Apart from the question in which form the TRIPS Agreement - directly or indirectly - is applicable [...], the use of Article 27 (1) of the TRIPS Agreement would not lead to any further protection. The wording there, according to which patents should be available for inventions in all fields of technology, basically only confirms the view that has already prevailed in German patent law, according to which the concept of technology is the only useful criterion for distinguishing inventions from other types of intellectual property Services, hence technicality, is a prerequisite for patentability (the decision of the BGH 'Logic Verification' refers to 'subsequent confirmation' of the jurisprudence through the provision in Article 27 (1) of the TRIPS Agreement). Also the exclusion of § 1 Abs. 2 Nr. 3 and Abs 3 PatG cannot be seen in contradiction to Art 27 Abs. 1 TRIPS Agreement given that it is based on the idea of ​​the lack of technical character of these subjects. "

Text of the relevant TRIPS provision:

"Article 27 (Patentable Subject Matter) 1. Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. "

See also

literature

  • Jan Busche u. Peter-Tobias Stoll (Ed.): TRIPs. International and European intellectual property law. Comment u. TRIPs decision register . Cologne, Berlin, Munich: Carl Heymanns 2007.
  • Klaus Elfring: Intellectual property in the world trade order. Effects of the TRIPS Agreement on the international protection of intellectual property, with a particular focus on law enforcement and legal developments . Cologne, Berlin, Munich: Carl Heymanns 2006.
  • Viola Fromm-Russenschuck, Raoul Duggal: WTO and TRIPs. Immediate impact on legal practice . Cologne, Berlin, Munich: Carl Heymanns 2004.
  • Ingo Niemann: Intellectual property in competing international law treaties. The relationship between WIPO and WTO / TRIPS . Berlin, Heidelberg: Max Planck Society for the Advancement of Science e. V. 2008.
  • Jan H. Schmidt-Pfitzner: The TRIPS agreement and its effects on German trademark protection . Hamburg: Verlag Dr. Kovac 2005.
  • Guido Westkamp: TRIPS Principles, Reciprocity and the Creation of Sui-Generis-Type Intellectual Property Rights for New Forms of Technology . In: The Journal of World Intellectual Property , Vol. 6, 2003, Issue 6, pp. 827-859.

Web links

Individual evidence

  1. ^ Understanding the WTO
  2. ↑ Peter Drahos with John Braithwaite : "Information Feudalism: Who Owns the Knowledge Economy?" New York: The New Press, 2002.
  3. ↑ Brazil : SCP / 14/7 . Ed .: WIPO . Geneva January 2010 ( wipo.int [PDF; accessed on February 17, 2010]).
  4. ↑ James Boyle : A MANIFESTO ON WIPO AND THE FUTURE OF INTELLECTUAL PROPERTY . In: Duke L. & Tech. Rev. Band 2004 , no. 0009 , September 8, 2004 ( duke.edu [accessed November 25, 2004]).
  5. ↑ Peter Drahos with John Braithwaite : "Information Feudalism: Who Owns the Knowledge Economy?" New York: The New Press, 2002.
  6. ^ Debora Halbert: "Globalized Resistance to Intellectual Property". In: Globalization (2005).
  7. ↑ wto.org
  8. ↑ Frank Schmiedchen and Christoph Spennemann published a comprehensive analysis of this at the end of 2007: Use and limits of intellectual property rights in a globalized knowledge society: The example of public health. ( alt.vdw-ev.de PDF; 610 kB, 2007).
  9. ↑ 17 W (pat) 69/98 "Searching for incorrect strings" July 28, 2000 [1]