Intellectual Property Before TRIPS: Paris, Berne and WIPO

In one line

For a century before TRIPS, international intellectual property law consisted of two conventions that required national treatment and set minimum standards, and had no way of enforcing either.

In exam wording: the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886, administered since 1970 by the World Intellectual Property Organization, are the instruments TRIPS incorporates by reference and builds upon.

The problem the conventions solved

Intellectual property is territorial. A patent granted in France gives rights in France and nowhere else; a copyright arising in England was, before 1886, worth nothing across the Channel. An author or an inventor therefore had to seek protection separately in every country, on whatever terms each country offered its own nationals and often on worse terms.

Two nineteenth century occasions forced the issue. Foreign inventors refused to exhibit at the 1873 Vienna international exhibition because their inventions would be copied without protection, which produced the diplomatic conferences leading to Paris. And French authors, Victor Hugo prominent among them, campaigned against the unauthorised reprinting of their works abroad, which produced Berne.

The Paris Convention 1883

Industrial property: patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source and appellations of origin, and the repression of unfair competition.

Its three principal contributions.

National treatment, Article 2. Nationals of any country of the Union enjoy in all the other countries the advantages that their respective laws grant to their own nationals, without any requirement of domicile or establishment.

The right of priority, Article 4. A person who has filed an application in one country of the Union may, within twelve months for patents and utility models and six months for industrial designs and trademarks, file in other countries and have those later filings treated as if made on the date of the first. This is the provision that makes international filing practicable.

Certain common rules, of which the best known are Article 5A on compulsory licences for failure to work a patent, Article 6bis on the protection of well-known marks, Article 6ter on State emblems, Article 8 on trade names, and Article 10bis on unfair competition.

What it does not do. It sets almost no minimum standards for the content or duration of the rights, leaving those to national law, and it has no enforcement mechanism.

The Berne Convention 1886

Literary and artistic works, and its contributions are different in kind.

National treatment, Article 5(1), and no formalities, Article 5(2): the enjoyment and exercise of the rights shall not be subject to any formality, and shall be independent of the existence of protection in the country of origin. That is why copyright arises automatically and why registration is not a condition of protection.