TRIPS

In one line

TRIPS is Annex 1C to the Marrakesh Agreement, binding on every WTO Member as part of the single undertaking, and it requires each Member to provide minimum standards of intellectual property protection, national treatment and most-favoured-nation treatment, and effective enforcement, enforceable through WTO dispute settlement.

What TRIPS did that was new

Before 1995 intellectual property was governed by the conventions administered by the World Intellectual Property Organization, principally the Paris Convention for industrial property and the Berne Convention for literary and artistic works. Those conventions did two things well and one thing badly. They required national treatment, so a foreigner was treated like a national; and they set some minimum standards. What they had no machinery for was enforcement: a State that ignored them faced no effective consequence.

TRIPS changed three things at once.

It raised the minimum standards across every category of right and, for patents, required protection in all fields of technology.

It added enforcement obligations, in Part III, requiring Members to make procedures and remedies available within their own legal systems.

And it brought intellectual property inside the WTO, so that a failure to comply is a matter for the Dispute Settlement Understanding described in [The World Trade Organization], with the possibility of authorised suspension of concessions. That is the change that mattered, and it explains the bargain: developing States accepted TRIPS as part of the single undertaking in article II(2) of the Marrakesh Agreement, in exchange for the market access they wanted in goods.

General provisions: articles 1 to 8

Article 1(1), the nature of the obligation. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required, provided it does not contravene the Agreement. And Members shall be free to determine the appropriate method of implementing the provisions within their own legal system and practice.

Three propositions in one paragraph. TRIPS sets a floor and not a ceiling, so a Member may protect more. It does not prescribe the form of implementation. And protection beyond the minimum must still be consistent with the Agreement, which is the limit on more-is-better.

Article 1(2). Intellectual property means all categories that are the subject of Sections 1 through 7 of Part II, that is copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout-designs of integrated circuits, and undisclosed information.

Article 1(3). Members shall accord the treatment provided for to the nationals of other Members, defined by the eligibility criteria of the Paris, Berne and Rome Conventions and the Treaty on Intellectual Property in Respect of Integrated Circuits as if all WTO Members were parties to them.