The Provisions of the TRIPS Agreement

The TRIPS Agreement is one of the three so-called pillar agreements that together make up the commitments of the WTO.² While the drafting of the TRIPS agreement clearly caused controversy, what provisions does the final text of the Agreement actually contain? In sharp contrast to most “negative” obligations imposed by the WTO agreements (e.g. not to use certain policies such as export subsidies or quotas), TRIPS invokes a “positive” obligation to adopt a set of substantive rules (Hoekman and Kostecki 2001, p. 274). This set of substantive rules is contained within seven major parts and 73 articles of TRIPS. The seven areas covered are: copyright, trademarks, geographical indication, industrial design, patents, layout design of integrated circuits, and undisclosed information (Das 1998, p. 115).

Among other provisions, the TRIPS Agreement:

• • sets minimum standards of protection for these seven areas;
• • sets minimum standards for the enforcement of intellectual property rights in administrative and civil actions;
• • sets minimum standards, with regard to copyright piracy and trademark counterfeiting, for the enforcement of intellectual property rights in criminal actions and actions at the border;
• • requires that, subject to limited exceptions, WTO members provide national and Most Favoured Nation (MFN) treatment to the nationals of other WTO members with regard to protection and enforcement of intellectual property rights.³

The extensive provisions of the TRIPS Agreement did not emerge solely from the Uruguay Round of negotiations; rather it pulls together and supplements previous intellectual property conventions (Richards 2004, p. 4). In fact, the substantive provisions on minimum levels of protection essentially incorporate existing IP conventions into the TRIPS Agreement. Part III of the TRIPS Agreement deals specifically with minimum standards for the enforcement of intellectual property rights.

The TRIPS Agreement was a result of compromise between the negotiating positions of the developed and developing countries respectively, and the provisions on enforcement demonstrate this compromise (Goldstein 2001, p. 59). In general, developed countries argued for stringently applied remedies, whereas developing countries were more concerned about maintaining their judicial discretion. Thus, members are required to give the appropriate judicial authorities the power to grant certain remedies but without further specifying the substantive form that the remedy should take. This preserves the concept of judicial autonomy, seen as crucial by some members. The enforcement provisions of the TRIPS Agreement were also seen as crucial because the lack of enforcement provisions in the existing conventions was one of the main stimuli to the negotiation of the TRIPS Agreement (May and Sell 2006, p. 173). Consequently, the TRIPS provisions on enforcement will be outlined below.