TRIPS Agreement on the Trade-Related Aspects of Intellectual Property

The Trade-Related Aspects of Intellectual Property Agreement (‘TRIPS’) is a multilateral^[1] agreement administered by the World Trade Organisation (“WTO”) that came into effect on 1 January 1995^[2].

The introduction of TRIPS was a result of intense lobbying by the United States, supported by developed nations like the European Union and Japan. This was a culmination of several factors in a globalising economy in the 1980s. Firstly, technology became increasingly important in international competition^[3]. IPR protection in the field of new technologies to create or reinforce exclusive rights was required^[4]. At the same time, globalisation broke down barriers to trade and communication^[5], which increased opportunities for direct export to developing countries^[6]. Multinational enterprises were concerned about poor intellectual property protections in developing countries^[7], which would hamper their developmental prospects^[8]. Therefore, TRIPS was created out of a need to establish minimum standards and an effective mechanism for enforcement^[9]. Secondly, the shift to high-technology products in developed countries^[10] created new forms of exclusion in a widening technology gap between rich and poor countries^[11]. There was a need to encourage innovation, entrepreneurialism and the acquisition of technical skills in developing countries^[12].

The aim of TRIPS is set out in its Preamble, and includes ‘reducing distortions and impediments to international trade’, promoting effective and adequate protection of Intellectual Property Rights (“IPRs”), and ‘ensuring that measures and procedures to enforce IPRs do not become barriers to legitimate trade’^[13]. Broadly, this aim is achieved by bringing IPRs together under a common international set of rules^[14] and establishing minimum standards of IPR protection^[15], which will allow for trans-border technology flows.

Historically, IPR laws resided in the domestic sphere^[16], and national governments had the flexibility to create policies relating to the scope and coverage of IPRs within their national jurisdictions^[17]. The existing Paris and Berne Conventions provided weak IPRs enforcement mechanisms. The main changes to the law was therefore the imposition of new and substantive minimum standards^[18], as well as a powerful enforcement mechanism. For example, governments must ensure that their laws provide for enforcement of IPRs and to make available procedures to ensure that private IPRs holders can take effective action against infringement^[19], as well as to intervene directly to enforce IPRs^[20].

The three main features of TRIPS are standards, enforcement and dispute settlement. Part II of TRIPS sets out minimum standards of IP protection to be provided by each Member in: (1) Copyright and related rights including computer programs and databases; (2) Trademarks; (3) Geographical indications; (4) Industrial designs; (5) Patents; (6) Layout designs of integrated circuits; and  (7) Undisclosed information, including trade secrets and test data^[21]. In particular, the main elements of protection are the subject matter eligible for protection, the scope of rights to be conferred, permissible exceptions to those rights, and the minimum duration of protection^[22]. Part III of TRIPS deals with domestic procedures and remedies for the enforcement of IPRs^[23], and Part V deals with dispute prevention and settlement^[24].