Intellectual Property and International Organisations and Agreements Notes | LL.M. Semester 1 | Mumbai University | munotes

In one line

Intellectual property is the name the law gives to a set of rights over things people make with their minds rather than with their hands.

In exam wording: intellectual property comprises the legally recognised rights arising from intellectual activity in the industrial, scientific, literary and artistic fields, exercisable against the world at large for a limited period, and conferred by statute over creations of the mind rather than over any physical object.

Why the law has this at all

Start with the problem, not with the definition. A carpenter who makes a chair owns the chair. Nobody has to invent a special law to say so, because the chair is a physical thing and only one person can sit on it at a time. If somebody takes it, the carpenter no longer has it.

A song is not like a chair. If you write a song and I learn it, you still have it. I have taken nothing away from you. Ten million people can sing it at once and none of them stops any of the others. Economists call this non-rivalry: consuming the thing does not use it up.

And a song is hard to fence. Once it is sung in public, anybody who hears it can repeat it. There is no wall to build, no lock to fit. Economists call this non-excludability: you cannot easily keep others out.

Those two features together are the whole problem. They make a song, an invention or a brand name look like something nobody can own, and if nobody can own it, the argument runs, nobody will pay to make it. Writing a symphony takes a year. Finding a drug takes a decade and a great deal of money. Copying either takes an afternoon.

Intellectual property is the answer the law gives. It creates, by statute, an artificial fence: a right to stop other people doing certain things with your creation for a certain number of years. That is all it is. It is not a natural feature of the world and it did not exist before Parliaments made it.

The four things every intellectual property right shares

1. The subject matter is intangible. What is protected is the invention, the expression, the sign or the design, not the copy in your hand. Buying a novel does not buy the copyright in it. Buying a patented machine does not buy the patent.

2. The right is negative. A patent does not entitle its owner to work the invention. It entitles the owner to stop others from working it. If the invention is a drug the regulator has not approved, the patent is worth nothing until the regulator says yes, and the patent office has nothing to do with that.

In one line

Intellectual property is property you cannot touch, and almost every rule about it follows from that one fact.

In exam wording: intellectual property is intangible incorporeal property, that is property whose subject matter has no physical existence and which is therefore incapable of physical possession, delivery or dispossession, so that the ordinary incidents of the law of movable and immovable property apply to it only by analogy and often not at all.

The vocabulary first

Corporeal property is property with a body: land, a car, a bag of rice. You can touch it, hold it, and hand it over.

Incorporeal property is property with no body: a debt, a share in a company, a right of way, a patent. It exists as a legal relationship and nothing else.

Intangible means the same thing as incorporeal in ordinary use. Indian statutes and Indian judgments use both.

Note the spelling. MU prints "incorporate". That is not a word for this idea; the word is incorporeal. Write the correct form in the exam and the meaning is unmistakable either way.

Why the law has this distinction

Because the whole of property law was built for things you can hold. Possession, delivery, theft, adverse possession, bailment, the passing of risk: every one of those concepts assumes an object that can be in one place at a time and in one person's hands.

None of them works on an invention. You cannot possess an inventive concept. You cannot deliver a melody. You cannot be adversely possessed out of a trade mark by somebody sitting on it for twelve years.

So the law had to build a parallel set of rules, and it did so statute by statute. That is why there is a Patents Act, a Copyright Act, a Trade Marks Act and five more, rather than one chapter of the Transfer of Property Act.

The three-way comparison

What follows from intangibility, in practice

There is no theft of a patent. Section 378 of the Indian Penal Code, and now the corresponding provision of the Bharatiya Nyaya Sanhita 2023, requires movable property to be taken out of a person's possession. An infringer takes nothing out of anybody's possession, which is why infringement is a civil wrong with statutory criminal provisions bolted on for particular kinds of copying, and not theft.

In one line

The nature of intellectual property is the set of features that make it behave differently from every other kind of property, and an examiner asking about its nature is asking for those features and their consequences.

In exam wording: intellectual property is a statutory, negative, territorial and time limited right over an intangible creation, transferable and divisible like other property but incapable of possession, and justified not by the creator's ownership of the thing but by the public purpose the grant is intended to serve.

Why this question is asked in that form

Because "concept" and "nature" are different questions. The concept is what intellectual property is. The nature is how it behaves. A student who answers the first and stops has answered half the question.

And the University pairs them with "types" every time. June 2023 asked for concept, nature and types together; February 2026 asked for the significance of different types with illustrations. The three go together because the types are only intelligible once the nature is understood.

The concept

Intellectual property is a bundle of statutory rights over creations of the mind. The bundle differs from right to right, but in every case it consists of a power to prevent defined acts by other people for a defined period.

The World Intellectual Property Organization Convention gives the widest definition there is. Article 2(viii) of the Convention Establishing WIPO defines intellectual property to include the rights relating to literary, artistic and scientific works; performances of performing artists, phonograms and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs; trademarks, service marks and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

That last clause is why the definition is wider than any statute. It is open ended. A right that does not yet exist can fall inside it, and this matters when a chapter reaches the WIPO GRATK Treaty of 2024, which protects something no national patent statute protects.

The nature: nine features

1. It is statutory. No Indian intellectual property right exists at common law. Every one is the creature of an Act, and the Act settles what the right covers and how long it lasts. The single exception is passing off, which is a common law tort protecting goodwill and is not itself an intellectual property right.

2. It is intangible. Worked in full in [Intangible and Incorporeal Property].

3. It is a negative right. The owner may stop others; the owner is not thereby entitled to act. Section 48 of the Patents Act 1970 confers the right to prevent third parties from making, using, offering for sale, selling or importing, and confers nothing else.

In one line

There are eight kinds of intellectual property in Indian law, and the way to tell them apart is to ask what each one protects, not what it is called.

In exam wording: intellectual property is conventionally divided into industrial property, comprising patents, trade marks, industrial designs, geographical indications, layout designs of integrated circuits, plant varieties and undisclosed information, and copyright with its neighbouring rights, each category having its own subject matter, its own test of protectability, its own term and its own statute.

Why the law has more than one category

Because the things being protected are not alike. A machine, a poem, a brand, a shape, a place name and a secret have almost nothing in common except that none of them is a chattel.

Each needs a different bargain. An inventor is asked to disclose the invention in return for twenty years of exclusivity, because disclosure is what advances the art. An author is asked to disclose nothing and gets a much longer term, because a novel does not teach anybody how to build anything. A trader who uses a mark gets a right that never expires, because the mark is protected for the consumer's benefit as much as the trader's.

So the categories are not tidy boxes. They are different bargains. A student who understands that will never confuse them.

The two traditional families

Industrial property, the phrase used by the Paris Convention. Article 1(2) of the Paris Convention says industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition. Article 1(3) adds that industrial property is to be understood in the broadest sense, applying not only to industry and commerce proper but to agricultural and extractive industries and to all manufactured or natural products.

Copyright and neighbouring rights, the subject of the Berne Convention and, for neighbouring rights, of the Rome Convention.

The division is historical, not logical. It exists because two different conventions were made in two different decades by two different sets of people, and the two secretariats were only merged in 1893 and only became WIPO in 1967. That story is [BIRPI and the Road to Stockholm].

The eight categories in Indian law

1. Patents, Patents Act 1970. A new product or process involving an inventive step and capable of industrial application. Twenty years from filing. Worked in [Patents].

2. Copyright and related rights, Copyright Act 1957. Original literary, dramatic, musical and artistic works, cinematograph films and sound recordings, plus the rights of performers and broadcasting organisations. No registration needed. Worked in [Copyright and Related Rights].

3. Trade marks, Trade Marks Act 1999. A mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others. Ten years, renewable for ever. Worked in [Trade Marks, Service Marks, Collective and Certification Marks].

In one line

A patent is a twenty year right to stop others working an invention, given in exchange for telling the world how the invention works.

In exam wording: a patent is a statutory grant conferring on the patentee, for a term of twenty years from the date of filing, the exclusive right to prevent third parties from making, using, offering for sale, selling or importing the patented product or the product obtained directly by the patented process, in consideration of a full and particular disclosure of the invention in a specification open to public inspection.

Why the law has this at all

An invention is expensive to make and cheap to copy. A pharmaceutical company may spend a decade and enormous sums finding a molecule that works. A competitor with the molecule in hand can manufacture it in months.

Without a patent the rational course is secrecy. Keep the process behind a locked door and hope nobody works it out. Secrecy protects the inventor but teaches nobody, and the art does not advance.

A patent is a bargain that buys disclosure. The inventor files a specification describing the invention so fully that a person skilled in the art could perform it, the specification is published, and in exchange the inventor gets twenty years of exclusivity. When the term ends, the disclosure is already in the public domain and anybody may use it.

That is the whole theory, and it is worth stating in the exam, because every argument in Module IV about access to medicines is an argument about whether the bargain is a fair one.

The three requirements

Novelty. The invention must be new, meaning not anticipated by publication or by use anywhere in the world before the priority date. Section 2(1)(l) of the Patents Act 1970 defines "new invention" and section 13 governs the examiner's search.

Inventive step. Section 2(1)(ja) defines it as a feature of an invention that involves technical advance as compared to existing knowledge, or has economic significance, or both, and that makes the invention not obvious to a person skilled in the art. The words "technical advance" and "economic significance" are India's own; TRIPS Article 27.1 says only "non-obvious".

Industrial application. Section 2(1)(ac): capable of being made or used in an industry. TRIPS Article 27.1 offers "capable of industrial application" with a footnote permitting a member to read it as synonymous with "useful".

What cannot be patented in India

Section 3 lists the exclusions, and four of them matter for this paper.

Section 3(d) excludes the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance. This is the provision construed in the Novartis case, worked in [Section 3(d) and the Novartis Case].

In one line

Copyright arises automatically the moment an original work is written down, drawn, recorded or filmed, and it protects the way the thing is expressed rather than what it is about.

In exam wording: copyright is the exclusive right, conferred by statute on the author of an original literary, dramatic, musical or artistic work and on the producer of a cinematograph film or sound recording, to do or authorise the doing of certain acts in relation to that work, arising automatically on creation without any formality and subsisting for a term measured in most cases by the life of the author and sixty years thereafter.

Why the law has this at all

Writing is cheap to copy and slow to make. A novel takes a year and a photocopier takes an hour. The economic argument is the same as for patents.

But the bargain is different. An author is not asked to teach anybody anything. A novel discloses no method. So the state asks for no disclosure and gives a much longer term in exchange for much less.

And there is a second reason that has nothing to do with economics. A work of authorship is an expression of a person, and continental European systems in particular treat the author's connection with the work as something the law protects for its own sake. That is where moral rights come from, and it is why Berne Article 6bis exists.

What is protected, and what is not

Section 13 of the Copyright Act 1957 says copyright subsists in original literary, dramatic, musical and artistic works, cinematograph films and sound recordings.

"Original" does not mean novel. It means not copied, and originating from the author. Two photographers who take the same view each own copyright in their own photograph.

The idea expression dichotomy. Copyright protects the expression and never the idea, the method, the plot at its most abstract, the fact or the news. This is a rule of Indian law and it is also a treaty obligation: TRIPS Article 9.2 says copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.

No registration is required anywhere in the world. Berne Article 5(2) says the enjoyment and the exercise of these rights shall not be subject to any formality. Indian registration under section 45 is voluntary and produces only prima facie evidence.

The rights themselves

Section 14 sets out what the owner may do or authorise: reproduction, issue of copies, performance in public, communication to the public, adaptation, translation, and for computer programmes and films and sound recordings, commercial rental.

Neighbouring rights, also called related rights, belong to people who are not authors. Performers have rights under sections 38 and 38A; broadcasting organisations have a broadcast reproduction right under section 37. These come from the Rome Convention 1961, worked in [The Rome Convention 1961: Performers, Producers and Broadcasters].

In one line

A trade mark is a sign that tells a buyer where goods come from, and the right is given as much for the buyer's sake as for the trader's.

In exam wording: a trade mark is a mark capable of being represented graphically and of distinguishing the goods or services of one person from those of others, and may include the shape of goods, their packaging and combinations of colours; registration confers on the proprietor the exclusive right to use the mark in relation to the goods or services for which it is registered and to obtain relief in respect of infringement.

Why the law has this at all

The reason is not the same as for patents and copyright. A patent and a copyright reward creation. A trade mark rewards nothing: the word APPLE was not invented by anybody and no effort went into choosing it.

The reason is information. A buyer who cannot tell one manufacturer's goods from another's cannot punish a bad one by buying elsewhere, and a manufacturer who cannot be identified has no reason to maintain quality. The mark is what makes reputation possible.

So the right protects two people at once: the trader, whose goodwill it protects, and the consumer, who is protected from confusion. That dual purpose is why the tests are all phrased in terms of likelihood of confusion rather than in terms of copying.

And it is why the term is unlimited. A patent expires because the information should become free. A mark does not expire, because the day it becomes free is the day buyers start being deceived. Section 25 of the Trade Marks Act 1999 gives ten years, renewable for ever.

What can be a mark

Section 2(1)(zb) defines a trade mark as a mark capable of being represented graphically and capable of distinguishing the goods or services of one person from those of others, and may include shape of goods, their packaging and combination of colours.

Section 2(1)(m) defines "mark" to include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.

Non-traditional marks are sounds, smells, moving images and holograms. India has registered sound marks. The Singapore Treaty on the Law of Trademarks 2006 was made to accommodate them, and India acceded to it in 2013.

The four kinds of mark

Trade marks, for goods.

Service marks, for services. The Paris Convention Article 6sexies obliges countries to protect service marks but does not require them to be registrable; TRIPS Article 15.1 removes that gap by defining a trademark to include service marks.

Collective marks, section 61 of the Trade Marks Act, owned by an association and used by its members.

In one line

Industrial designs protect how a thing looks, geographical indications protect where it comes from, layout designs protect the pattern etched on a chip, and plant varieties protect a new kind of seed; undisclosed information protects whatever you have managed to keep secret.

In exam wording: the remaining categories of intellectual property recognised in India are industrial designs under the Designs Act 2000, geographical indications under the Act of 1999, layout designs of semiconductor integrated circuits under the Act of 2000, plant varieties under the Act of 2001, and undisclosed information protected by the common law of confidence, each with its own subject matter, term and international instrument.

Industrial designs

What is protected. Section 2(d) of the Designs Act 2000 defines a design as the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article, in two or three dimensions, by any industrial process, being features that in the finished article appeal to and are judged solely by the eye.

The exclusions inside the definition matter more than the definition. A design does not include any mode or principle of construction, anything which is in substance a mere mechanical device, a trade mark, a property mark, or an artistic work under the Copyright Act.

Why "judged solely by the eye" is the key phrase. It draws the line against patents. Function belongs to the Patents Act; appearance belongs to the Designs Act; and a feature dictated solely by function is not a design at all.

Requirements. Novelty or originality, not previously published in India or elsewhere, and not contrary to public order or morality.

Term. Ten years from registration under section 11, extendable by five on application before expiry.

International instrument. The Hague Agreement, whose Geneva Act of 1999 allows one international application. India is not a party, and why not is a real question, worked in [The Hague Agreement and the Geneva Act 1999, Articles 1 to 18]. The Locarno Agreement 1968 supplies the classification.

A worked case. In Dhanpat Seth v. Nil Kamal Plastic Crates Ltd the plaintiffs held a patent, not a design registration, over a plastic version of the traditional kilta basket.

Facts. The kilta is a conical bamboo basket used in Himachal Pradesh from time immemorial for carrying produce. The plaintiffs made the same shape in polypropylene with adjustable nylon straps and buckles, obtained a patent, and sued a competitor whose crate was in high density polyethylene. The Division Bench inspected all three articles.

Held. The appeal against refusal of an interim injunction was dismissed. Changing the material from bamboo to a polymer was not an inventive step within section 2(1)(ja), the substitution of plastic for natural materials being long established; and section 3(p) of the Patents Act excludes an invention which in effect is traditional knowledge or an aggregation or duplication of known properties of traditionally known components. The judgment is at 2007 SCC OnLine HP 39; AIR 2008 HP 23.

In one line

There are four classic arguments for intellectual property, and each of them has an objection that a good answer states.

In exam wording: the protection of intellectual property is justified on four grounds, the natural rights argument, the labour or desert argument derived from Locke, the personality argument derived from Hegel and Kant, and the utilitarian or incentive argument, of which the last is the ground on which most modern systems including India's actually rest.

Why the question is worth asking

Because nothing about intellectual property is inevitable. Land law exists everywhere because land is scarce everywhere. Patents exist because Parliaments passed Acts, and they could repeal them tomorrow.

Because the justification decides the shape of the right. A system built on the author's personality gives strong moral rights and a long term, which is the French and German pattern. A system built on incentive gives a term calculated to be just long enough, which is the American pattern. India has taken from both.

And because Module IV is an argument about the justification. A student who cannot state why the system exists cannot say what should be done when it collides with the right to health.

The four arguments

1. Natural rights

The claim. A person who creates something has a right to it in the nature of things, before and independently of any statute, and the law merely recognises what already exists.

Where it comes from. The French revolutionary decrees of 1791 and 1793 spoke of the author's property as the most sacred, the most personal of all properties. The Universal Declaration of Human Rights Article 27(2) carries an echo of it: everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

The objection. It proves too much and too little. Too much, because a natural right would have no expiry, and every system limits the term. Too little, because it says nothing about how wide the right should be, and a right whose content the theory cannot specify is not doing much work.

2. Labour, or desert

The claim. John Locke argued that a person who mixes labour with something unowned acquires property in the result. Applied here: a person who labours to produce an invention or a book deserves the fruits.

The objection, and it is strong. Copyright does not reward labour: it rewards originality, and a phrase written in a second is protected while a decade of research producing an obvious result is not. Locke's own proviso required that enough and as good be left for others, and a patent on a basic research tool leaves nothing as good for anyone.

In one line

The need is economic, the growth is historical, and the objectives are what the statutes say they are; the question asks for all three in that order.

In exam wording: the need for intellectual property rights arises from the public good character of intangible creations; their growth traces from the Venetian and English statutes of the fifteenth and eighteenth centuries through the international conventions of the 1880s to the trade linked regime of 1994 and the digital and genetic resource treaties since; and their objectives, as stated in Article 7 of TRIPS, are the promotion of innovation, the transfer and dissemination of technology, mutual advantage and a balance of rights and obligations.

The need

Three propositions, and each can be shown rather than asserted.

1. Creations of the mind are public goods. They are non rival and non excludable, worked in [What Intellectual Property Is]. The market therefore under supplies them, because the creator bears the whole cost and captures only part of the benefit.

2. The cost of creating and the cost of copying have diverged, and keep diverging. In 1450 copying a book took a scribe a year. In 1500 it took a printer a week. In 2026 it takes a second. The cheaper copying gets, the sharper the problem becomes, and this is why every technological change produces new intellectual property law.

3. Modern economies trade in intangibles. A large part of the value of a modern company is not in its factories. India's software services exports, its pharmaceutical exports and its film industry all depend on rights that exist only because statutes create them.

The fourth reason is defensive, and it matters to India. Without a domestic system, Indian traditional knowledge and genetic resources were patented abroad by others, which is the biopiracy story worked in [Biopiracy: Turmeric, Neem, Basmati, and the Digital Library].

The growth

Stage one: the privileges. The Venetian Senate's decree of 1474 is the first general patent statute, offering ten years to the maker of any new and ingenious device. English monarchs granted patents of monopoly, abused them, and Parliament restrained the practice by the Statute of Monopolies 1624, whose section 6 preserved grants for the sole working of new manufactures for fourteen years.

Stage two: the statutes. The Statute of Anne 1710 gave authors, not printers, a term of copyright. The French decrees of 1791 and 1793 declared the author's right. The United States Constitution of 1787 gave Congress power to secure to authors and inventors, for limited times, the exclusive right to their writings and discoveries.

Stage three: the conventions. The Paris Convention of 1883 and the Berne Convention of 1886. Both were made because rights stopped at borders and trade did not. Their story is [Why an International System Became Necessary: Vienna, 1873].

In one line

Intellectual property performs four economic functions, and there is a serious argument against each of them that a student should be able to state.

In exam wording: an intellectual property system performs the functions of incentivising creation, disclosing information, permitting the orderly transfer of technology and reducing consumer search costs, and the case against intellectual property, which is the standing criticism of intellectual property as an institution rather than of any particular rule in it, rests on the grounds that it creates deadweight loss, that it obstructs cumulative innovation, that its incentive effect is empirically unproven outside a few industries, and that it transfers wealth from countries that consume knowledge to countries that produce it.

The four functions

1. Incentive to create. The exclusive right lets a creator charge more than the cost of copying, and so recover the cost of creating. This is the function the whole system is built on.

2. Disclosure. A patent is granted only in exchange for a specification that enables a person skilled in the art to perform the invention, and that specification is published. Without patents, the rational strategy is secrecy, and secrecy teaches nobody. The disclosure function has no counterpart in copyright, which is why the terms differ so much.

3. Orderly transfer of technology. You cannot sell what you cannot own. A firm with knowledge and no factory and a firm with a factory and no knowledge can only make a deal if the knowledge can be defined, valued and transferred, and a patent is what makes that possible. This is why TRIPS Article 7 names transfer of technology as an objective.

4. Reduction of search costs. A trade mark tells a buyer whose goods these are, which saves the buyer from inspecting every product and lets a producer profit from quality. This function belongs to marks alone.

The four objections

1. Deadweight loss. Because the marginal cost of an extra copy is near zero, any price above near zero excludes some buyers who value the product more than it costs to supply them. Those transactions simply do not happen, and the loss is not transferred to anybody; it evaporates. The system deliberately accepts this loss in order to buy creation, and the whole argument is about whether the purchase is worth the price.

2. Obstruction of cumulative innovation. Every invention builds on earlier ones. If the earlier ones are patented, the later inventor needs licences, and where many patents cover one product the transaction costs can stop the product being made at all. This is the anticommons problem, and it is acute in biotechnology and telecommunications.

3. The incentive effect is not proved. The claim that patents increase innovation is an empirical claim. The evidence supports it strongly for pharmaceuticals, where copying is trivial and development is enormously expensive, and weakly or not at all for many other industries, where lead time, complexity and reputation do the work instead.

In one line

Intellectual property is an asset in the ordinary commercial sense: it can be owned, valued, sold, licensed, mortgaged, taxed and put on a balance sheet, and in many modern firms it is worth more than everything physical they own.

In exam wording: intellectual property constitutes an intangible asset capable of independent valuation, transfer and encumbrance, whose contribution to economic development operates through four channels, the direct earning of licence revenue and exports, the attraction of foreign direct investment and technology transfer, the enabling of firm finance against intangible security, and the signalling of quality and origin that permits producers to capture the value of reputation.

Why the law has this at all

Because a right nobody can sell is not much use to a small creator. An inventor who cannot license the invention has to build a factory. An author who cannot assign the copyright has to become a publisher.

Transferability is what turns a right into an asset, and every intellectual property statute in India provides for it: section 68 of the Patents Act for assignment, section 19 of the Copyright Act, sections 37 to 45 of the Trade Marks Act.

Divisibility is what makes it flexible. The same patent can be licensed to one firm for India, another for Africa, a third for a different field of use, and mortgaged to a bank at the same time.

The four channels to development

1. Direct earnings. Royalties, licence fees and exports of protected goods and services. India's software and pharmaceutical exports are the clearest domestic example, and both depend on rights recognised in the importing country, which is why Module II exists.

2. Investment and technology transfer. A firm deciding where to manufacture asks whether its technology will be protected. TRIPS Article 7 names transfer of technology as an objective, and Article 66.2 obliges developed members to provide incentives for the transfer of technology to least developed members. Whether the obligation has produced anything is a fair question and the honest answer is very little.

3. Finance. Intangible assets can secure a loan. Section 68 assignments can be by way of mortgage; a trade mark can be charged; a film's future receipts can be assigned. In an economy where a software firm has no land, this can be the only security available.

4. Reputation and quality. A geographical indication lets producers in a region capture a premium that the region's reputation earns, which is the whole economic case for the Geographical Indications Act 1999 and for Darjeeling tea being registered as the first Indian indication.

How an intangible is valued

Three approaches, and an examiner is entitled to expect them named.

The cost approach asks what it cost to create the asset, or what it would cost to recreate it. Simple, and usually wrong, because cost has no necessary relation to value.

In one line

Patents began as royal favours in fifteenth century Italy, copyright began as a printers' monopoly in England, trade marks began as guild marks, and each became a right of the creator only when a legislature said so.

In exam wording: the modern law of intellectual property developed from the Venetian patent decree of 1474 and the English Statute of Monopolies 1624 in the case of patents, from the Stationers' Company monopoly and the Statute of Anne 1710 in the case of copyright, and from mediaeval guild and merchants' marks in the case of trade marks, national systems being harmonised internationally only from 1883.

Patents

1421, Florence. Filippo Brunelleschi is granted a three year monopoly on a barge for carrying marble, on condition that he disclose how it worked. The bargain is already there.

1474, Venice. The Senate decrees that any person who makes a new and ingenious device in the city, reduced to perfection so that it can be used, shall register it and enjoy ten years of exclusivity. This is the first general patent statute: not a favour to one person but a rule for anyone.

Sixteenth century England. The Crown grants patents of monopoly, and abuses them, granting monopolies over salt, starch and playing cards to courtiers. Darcy v Allein in 1602 held a monopoly on playing cards void at common law.

1624, the Statute of Monopolies. Parliament declares monopolies void, but section 6 preserves grants of the sole working of any manner of new manufactures to the true and first inventor, for fourteen years. Fourteen was two apprenticeship terms, so that a monopolist could train two generations of apprentices before the monopoly ended.

1856, India. The first Indian patent legislation, Act VI of 1856, based on the British Act of 1852.

Copyright

1440s, printing. Before movable type there was no copying problem worth legislating about, because copying was as slow as writing.

1557, the Stationers' Company. The English Crown grants the London printers a monopoly on printing in exchange for censorship. The right belonged to the printer, not the author, and it was perpetual.

1710, the Statute of Anne. "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies". Two things are new: the author is the first owner, and the term is limited, fourteen years renewable once.

1774, Donaldson v Becket. The House of Lords holds there is no perpetual common law copyright in a published work. The public domain is created.

1791 and 1793, France. The revolutionary decrees on performance and reproduction rights, expressed as the author's property.

1847 and 1914, India. The Indian Copyright Act 1847, then the Act of 1914 applying the British Act of 1911, then the Copyright Act 1957.

In one line

Intellectual property rights are national, and everything international about them exists because that fact is inconvenient.

In exam wording: the international character of intellectual property rights denotes the tension between the strictly territorial nature of rights created by national statute and the international movement of goods, services, works and information, a tension resolved not by any world right but by a network of treaties resting on national treatment, minimum standards, priority and international registration procedures.

Why the question is asked

Because the phrase looks like it means the opposite of what it means. A student who reads "international character" as "these rights are international" has already gone wrong. The rights are the least international thing in the subject.

The right answer has two halves. First, why they are not international. Second, what has been built because they are not.

Half one: rights are territorial

A patent granted by the Indian Controller is effective in India. It confers nothing anywhere else. There is no world patent, no world copyright and no world trade mark, and every treaty in Module II says so or assumes it.

Three reasons.

Sovereignty. A right to exclude is an exercise of state power, and no state accepts another's exercise of it inside its own territory.

Different policy choices. Section 3(d) of the Indian Patents Act refuses patents that many countries grant, deliberately. If rights were universal, that choice would be impossible.

Different procedures. Examination standards, opposition systems and evidence rules differ, and a right granted under one cannot simply be honoured under another.

Two consequences follow, and both are examinable.

Independence of rights. Paris Article 4bis provides that patents applied for in different countries of the Union shall be independent of the patents obtained for the same invention in other countries; revocation in one has no effect in another. Paris Article 6(3) says the same for marks.

No universality of reputation. A mark famous everywhere is not for that reason protected in India. That is what the Supreme Court held in the Prius case, worked in [Territoriality and the Independence of Rights].

Half two: what has been built because of it

Five devices, and every treaty in Module II uses one or more.

1. National treatment. Each country must give foreigners from other member countries the same protection it gives its own nationals. Paris Article 2, Berne Article 5(1), TRIPS Article 3. It does not harmonise anything; it only forbids discrimination.

2. Minimum standards. Because national treatment alone would let a country give everybody nothing, the conventions add floors: Berne's life plus fifty in Article 7, TRIPS's twenty year patent term in Article 33.

3. Right of priority. Paris Article 4 lets an applicant who files in one country file in others within twelve months for patents, six for marks and designs, and be treated as though filed on the first date. It does not create a right; it buys time.

In one line

A right exists only where its statute runs, and a right granted in one country stands or falls on its own without regard to what happened to the same invention or mark anywhere else.

In exam wording: the principle of territoriality provides that an intellectual property right created by the law of a state exists and is enforceable only within that state's territory; the principle of independence, expressed in Article 4bis and Article 6(3) of the Paris Convention, provides that rights obtained in different countries for the same subject matter are independent of one another in grant, validity and duration.

Territoriality

The rule. The existence, scope, validity and remedies for an intellectual property right are governed by the law of the country for which protection is claimed. Lawyers call this the lex loci protectionis, the law of the place of protection.

Berne says it in terms. Article 5(2): apart from the provisions of the Convention, the extent of protection and the means of redress afforded to the author to protect his rights shall be governed exclusively by the laws of the country where protection is claimed.

What follows for a litigant. An Indian court applies Indian law to decide whether an Indian right is infringed in India. It does not decide whether a German patent is valid, and it does not grant relief for acts done in Germany.

Independence

Paris Article 4bis(1): patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not.

Article 4bis(2) spells out the consequence: independence means without any limitation, particularly in the sense that patents applied for during the period of priority are independent as regards the grounds of nullity and forfeiture, and as regards their normal duration.

Paris Article 6(1) and 6(3) do the same for marks: the conditions for filing and registration are determined by domestic law, and a mark duly registered in one country of the Union is independent of marks registered in other countries, including the country of origin.

The one qualification is Article 6quinquies, the "telle quelle" rule: a mark duly registered in the country of origin shall be accepted for filing and protected as is in other countries of the Union, subject to stated exceptions. That is a limited exception to independence and it is the provision the plain packaging complainants tried to use against Australia.

Why the two principles are not the same thing

Territoriality is about where a right operates. Independence is about whether one right's fate affects another's.

A system could be territorial without being independent. It could provide that a patent revoked in its country of origin lapses everywhere. Paris deliberately says it does not, and the reason is in the history: before 1883 some countries did make the local patent depend on the foreign one, and inventors lost rights through foreign accidents they could not control.

In one line

Getting an intellectual property right means filing, being examined, surviving opposition and being granted, except for copyright, where it means writing something down.

In exam wording: the acquisition of rights in intellectual property denotes the procedures by which a right comes into existence, comprising for registrable rights application and examination, both formal and substantive, followed by publication, opposition and grant or registration, and for copyright and unregistered marks the occurrence of the facts that give rise to the right, the whole being governed internationally by Article 62 of TRIPS.

Why the law has this at all

Because a right to exclude the world needs to be knowable by the world. A competitor deciding whether to enter a market must be able to find out what is protected, by whom, and until when. That is what a register is for.

And because a monopoly should not be granted carelessly. Examination exists to keep out inventions that are not new, and opposition exists because the patent office cannot know everything the industry knows.

Copyright is the exception and it proves the point. Berne Article 5(2) forbids formalities, so there is no register, and the price is that ownership and subsistence are frequently disputed in litigation instead.

The stages, for a patent

1. The application. A provisional or complete specification under section 7 of the Patents Act. The date of filing is the priority date, which fixes what counts as prior art.

2. Publication. Section 11A: after eighteen months from the priority date the application is published. This is not optional and it is what makes the disclosure bargain real.

3. Request for examination. Section 11B. In India examination happens only on request, within the prescribed period, and if no request is made the application is deemed withdrawn.

4. Examination and objections. The examiner searches the prior art and issues a first examination report. The applicant amends and answers.

5. Pre grant opposition. Section 25(1): any person may oppose before grant, on eleven grounds.

6. Grant and sealing. The patent is granted and entered in the Register of Patents.

7. Post grant opposition. Section 25(2): any interested person may oppose within twelve months of publication of grant.

The stages, for a trade mark

Application, examination for absolute grounds under section 9 and relative grounds under section 11, publication in the Trade Marks Journal, opposition within four months under section 21, and registration under section 23.

The stages, for a design and a geographical indication

A design is examined for novelty and for whether it is a design at all, but not for inventiveness, and there is no pre registration opposition; cancellation under section 19 comes afterwards.

A geographical indication is examined, published, opposed within three months under section 14, and registered in Part A, with authorised users entered in Part B.

In one line

A right you have obtained can be lost by not paying, not using, or not working it, and each kind of intellectual property loses it in a different way.

In exam wording: the maintenance of intellectual property rights denotes the acts required after grant or registration to keep the right in force, comprising the payment of renewal or annuity fees, compliance with working and use requirements, the filing of statements of working, and defence against revocation, cancellation, rectification and removal, the international framework being Article 62 of TRIPS with Articles 5 and 5bis of the Paris Convention.

Why the law has this at all

Because a monopoly nobody is using is a monopoly for nothing. The public gave up the right to copy in exchange for a benefit. If the benefit is not delivered, the bargain has failed.

And because registers fill up with dead rights. A register that lists thousands of marks nobody uses is a register that blocks new traders for no reason. Removal for non use clears it.

So maintenance obligations are not administrative housekeeping. They are the mechanism by which the public's side of the bargain is enforced.

The four maintenance obligations

1. Fees. A patent requires annual renewal fees from the third year under section 53(2) of the Patents Act; failure means the patent ceases. A trade mark is renewable every ten years under section 25. A design is renewed once, for five years, under section 11(2).

Paris Article 5bis is the safeguard. It requires a period of grace of not less than six months for the payment of maintenance fees, and permits restoration of a lapsed patent. Section 53(4) and rule 80 of the Indian Patents Rules give that grace; section 60 permits restoration within eighteen months of cesser.

2. Use, for trade marks. Section 47 permits removal where the mark has not been used for a continuous period of five years from the date of registration and three months before the application for removal.

3. Working, for patents. Section 146 of the Patents Act requires the patentee and every licensee to furnish a statement of the extent to which the patented invention has been worked commercially in India, filed in Form 27. Failure is punishable under section 122.

4. Defence against attack. Revocation under section 64, post grant opposition under section 25(2), rectification of the trade marks register under section 57, cancellation of a design under section 19.

The working requirement and the treaties

This is where a maintenance question becomes a treaty question, and MU's paper is about treaties.

Paris Article 5A(1) provides that importation of articles manufactured in another country of the Union shall not entail forfeiture of the patent.

In one line

An assignment is a sale of the right itself, so the assignee becomes the owner and the assignor keeps nothing.

In exam wording: an assignment is a transfer of the ownership of an intellectual property right, whether in whole or in part, absolutely or by way of mortgage, which must be in writing and duly executed, and which upon registration where required vests in the assignee the title, the right to sue and the right to further assign.

Why the law has this at all

Because the creator is rarely the best exploiter. A university laboratory does not manufacture. A novelist does not print, distribute and sell.

Because there is no delivery. With a chattel, handing it over transfers it. With an intangible there is nothing to hand over, so the law substitutes a formality: writing, signed, and usually registered.

The requirements

Writing, signed. Section 68 of the Patents Act: an assignment of a patent is not valid unless it is in writing and the agreement between the parties is reduced to the form of a document embodying all the terms and conditions governing their rights and obligations and duly executed. Section 19 of the Copyright Act: no assignment is valid unless it is in writing signed by the assignor or by a duly authorised agent.

Registration, and what it does. Section 69 of the Patents Act requires application to the Controller to register the title; section 45 of the Trade Marks Act requires the assignee to apply to the Registrar. Section 69(5) provides that a document in respect of which no entry has been made in the register shall not be admitted in evidence in any court in proof of title except by leave of the court.

Particulars, for copyright. Section 19(2) to (7) is unusually detailed: the assignment must identify the work, specify the rights assigned, the duration and the territorial extent, and specify the amount of royalty or consideration payable. If the period is not stated it is deemed five years; if the territorial extent is not stated it is presumed to extend within India.

The 2012 additions. Section 19(8), (9) and (10) make void an assignment contrary to the terms of a copyright society's assignment, and preserve the author's right to royalties for uses of a literary or musical work in a film other than by exhibition in a cinema hall. These are the provisions that grew out of the Indian Performing Right Society case, worked in [Copyright and Related Rights].

Partial assignment

By right. A patent may be assigned for some claims and not others, though in practice this is rare and difficult.

By territory. Indian rights to one assignee, foreign to another.

In one line

A licence is permission to do what would otherwise infringe, given by the owner who stays the owner, or given by the state when the owner will not.

In exam wording: a licence is a grant of permission by the proprietor of an intellectual property right, or by operation of law, authorising the licensee to do acts that would otherwise infringe, and may be voluntary or compulsory, and if voluntary may be exclusive, sole or non exclusive, the whole being subject to competition law and to the disciplines of Articles 31 and 40 of TRIPS.

The three kinds of voluntary licence

Exclusive. The licensee alone may work the right, and the licensor may not work it either. Section 2(1)(f) of the Patents Act defines an exclusive licence as one conferring on the licensee, or on the licensee and persons authorised by it, to the exclusion of all other persons including the patentee, any right in respect of the patented invention.

Sole. The licensee is the only licensee, but the licensor may still work the right itself. Indian statutes do not define this; it is a creature of contract and it must be drafted expressly.

Non exclusive. The licensor may license as many others as it likes.

Why the distinction matters procedurally. Section 109 of the Patents Act gives an exclusive licensee the like right as the patentee to institute a suit for infringement, and requires the patentee to be added as a defendant if it will not join as a plaintiff. Section 61 of the Copyright Act requires the owner of the copyright to be made a party where an exclusive licensee sues.

Compulsory licences

The idea. The state authorises a third party to work the right without the owner's consent, on terms the state fixes, because the public interest requires it.

The treaty basis. Paris Article 5A(2) permits compulsory licences to prevent abuses resulting from the exercise of the exclusive rights, for example failure to work. TRIPS Article 31 then imposes twelve conditions on any such use, and Article 31bis, inserted by the Protocol in force on 23 January 2017, adds an export mechanism. Both are worked in Module III.

In India. Section 84 of the Patents Act, on application after three years from grant, on any of three grounds: that the reasonable requirements of the public have not been satisfied; that the patented invention is not available to the public at a reasonably affordable price; or that it is not worked in the territory of India. Section 92 permits the Central Government to notify circumstances of national emergency, extreme urgency or public non commercial use. Section 92A permits an export licence for a country with insufficient manufacturing capacity, which is India's Article 31bis provision.

In one line

Franchising, merchandising, technology transfer and patent pools are all licences with something extra bolted on, and the extra is what makes each of them a distinct commercial form.

In exam wording: beyond assignment and simple licensing, intellectual property is commercially exploited through franchising, in which a bundle of rights is licensed together with a business system; through merchandising, in which a mark or character is licensed for goods unrelated to the original business; through technology transfer, in which patents, know how and technical assistance move together; and through patent pools and cross licensing, in which several holders license each other or a common vehicle.

Franchising

What it is. A franchisor licenses a bundle: the trade mark, the trade dress, the know how, the manuals, the software, the recipes, and requires the franchisee to run the business according to a system, in exchange for an initial fee and continuing royalties.

Why the mark is central. The franchisee trades under the franchisor's mark, so to the public the outlets are one business. That makes quality control not merely commercially prudent but legally necessary: a mark used by a licensee whose quality the proprietor does not control ceases to indicate a single trade origin and becomes liable to be attacked.

The Indian mechanism. Section 48 to 55 of the Trade Marks Act 1999 provide for registered users and for permitted use, and section 2(1)(r) defines permitted use to include use by an unregistered licensee with the proprietor's consent under a written agreement, provided the proprietor has control. Section 49 governs registration as a registered user.

What franchising is not. It is not an agency, because the franchisee trades on its own account, and it is not a partnership.

Merchandising

What it is. Licensing a mark, a character, a personality or a design for goods that have nothing to do with the licensor's own trade: a cricket team's name on a lunchbox, a film character on a school bag.

The legal difficulty. A mark protects the goods and services it is registered for. Merchandising by definition crosses into other classes, so the licensor must either register defensively across many classes, or rely on being a well known mark under sections 11(6) to 11(9) of the Trade Marks Act, which is India's enactment of Paris Article 6bis as extended by TRIPS Article 16.3.

Character merchandising also raises copyright, because a drawn character is an artistic work, and personality rights, which Indian courts have developed without a statute.

Technology transfer

What it is. The movement of the capacity to make something, not merely the right to make it. A patent licence alone transfers the right; a technology transfer agreement adds know how, drawings, training, technical assistance, and frequently the supply of equipment.

In one line

An intangible right can be mortgaged, charged or pledged like anything else you own, and the hard part is not the law but the valuation.

In exam wording: intellectual property may be given as security for credit by way of mortgage, charge, hypothecation or assignment by way of security, the Indian statutes expressly contemplating assignment by way of mortgage, the principal practical obstacles being valuation, the absence of a unified security register and the risk that the right is invalidated during the term of the loan.

Why this matters at all

Because for many knowledge firms it is the only security they have. A software company leases its office and owns nothing but code, contracts and a brand.

Because a large share of corporate value is now intangible. A lender who will not take intangible security cannot lend to a modern firm at all.

And because the law already allows it, so the obstacles are practical.

What the statutes say

Patents. Section 68 of the Patents Act 1970 refers to an assignment, a mortgage, a licence or the creation of any other interest, so a mortgage of a patent is expressly contemplated. Section 69 requires registration of the title or interest with the Controller, and section 69(5) makes an unregistered document inadmissible to prove title except by leave.

Copyright. Section 18 permits assignment of the copyright either wholly or partially, and section 30 permits licences. An assignment by way of security is an assignment.

Trade marks. Sections 37 to 45 govern assignment and transmission, and section 45 requires the assignee to apply to the Registrar.

Company charges. Section 77 of the Companies Act 2013 requires a company creating a charge on its property, including intangible property, to register it with the Registrar of Companies within thirty days; section 77(3) provides that an unregistered charge shall not be taken into account by a liquidator or any other creditor.

Secured transactions generally. The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 covers a security interest in intangible assets including intellectual property, so enforcement machinery exists.

The three valuation approaches

The cost approach. What did it cost to create, or what would it cost to recreate. Easy to compute and usually a poor guide, because a cheap invention may be worth a fortune and an expensive one nothing.

The market approach. What have comparable rights sold for. Good where an active market in comparable rights exists, which is true of some trade marks and almost never true of a specific patent.

The income approach. What income is attributable to the right, discounted to present value. This is the method actually used, and its two difficult inputs are the attributable royalty rate and the discount rate.

In one line

Abuse of an intellectual property right means using a lawful monopoly to obtain something the monopoly was never granted for.

In exam wording: abuse of intellectual property rights denotes conduct by a right holder which, while formally within the scope of the right, defeats the purposes for which the right was granted, and which the international system addresses through Article 5A of the Paris Convention, Articles 8.2, 31 and 40 of TRIPS, and in India through sections 84, 92 and 140 of the Patents Act and section 3(5) of the Competition Act 2002.

Why "abuse" is a difficult word here

Because the right IS a monopoly. Charging a high price is not abuse; it is the point. Refusing to license is not abuse; exclusivity is what was granted.

So abuse cannot mean using the right. It has to mean something narrower, and there are three coherent senses.

Sense one: using the right to obtain a monopoly the state did not grant. Tying an unpatented product to a patented one extends the monopoly beyond the claims.

Sense two: exercising the right so as to defeat the purpose of the grant. A patent granted to encourage working in India, used only to block imports and to keep the technology out, defeats the section 83 purpose.

Sense three: procedural abuse. Filing a chain of trivial patents to extend an expiring monopoly, or bringing groundless infringement threats to frighten competitors out of the market.

What the treaties permit

Paris Article 5A(2): each country of the Union may provide for the grant of compulsory licences to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example failure to work. The word "abuse" is the treaty's own.

TRIPS Article 8.2: appropriate measures, provided they are consistent with the Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.

TRIPS Article 40.1: members agree that some licensing practices or conditions pertaining to intellectual property rights which restrain competition may have adverse effects on trade and may impede the transfer and dissemination of technology. Article 40.2 permits members to specify in their legislation practices which may constitute an abuse having an adverse effect on competition, and names three: exclusive grantback conditions, conditions preventing challenges to validity, and coercive package licensing.

The forms abuse takes

Tying and bundling. Requiring the purchase of an unpatented product as a condition of a licence. Section 140(1)(a) of the Patents Act voids it.

Coercive package licensing. Requiring a licence of patents the licensee does not want. Section 140(1)(c) voids it, and TRIPS Article 40.2 names it.

In one line

Competition law and intellectual property law pull in opposite directions on the surface and in the same direction underneath, and the whole subject is about where the surface conflict is real.

In exam wording: the relationship between intellectual property and competition law is governed in India by section 3(5) of the Competition Act 2002, which exempts reasonable conditions necessary to protect intellectual property rights from the prohibition on anti competitive agreements, and by section 4, which contains no such exemption for abuse of dominance, the international framework being Articles 8.2 and 40 of TRIPS.

The apparent conflict, and why it is only apparent

The surface conflict. Competition law attacks monopoly. Intellectual property law creates it.

The reason that is too quick. A patent is a legal right to exclude in respect of a defined invention. It is not market power. There may be five alternative technologies, in which case the patentee has a monopoly in law and none in fact.

The deeper agreement. Both bodies of law aim at consumer welfare through innovation. Competition law promotes it by keeping markets contestable; intellectual property promotes it by making investment recoverable. They differ about method, not about object.

Where the conflict is real. When the right is used as a lever to obtain power in a market the right does not cover, or when the right is essential to a standard so that no alternative exists.

Indian law

Section 3(1) and 3(3) of the Competition Act 2002 prohibit agreements causing an appreciable adverse effect on competition, and presume horizontal agreements on prices, output, markets and bid rigging to do so.

Section 3(4) covers vertical agreements: tie in arrangements, exclusive supply, exclusive distribution, refusal to deal and resale price maintenance, each judged by whether it causes an appreciable adverse effect.

Section 3(5) is the exemption, and its wording is the whole question. Nothing in section 3 shall restrict the right of any person to restrain any infringement of, or to impose reasonable conditions as may be necessary for protecting any of his rights under the seven listed statutes.

Three consequences follow from that wording.

It protects conditions, not conduct at large. Enforcing the right is expressly protected; imposing conditions is protected only if they are reasonable and necessary for protection.

It is an exemption from section 3 only. Section 4, abuse of dominant position, has no equivalent exemption, so a dominant holder's conduct is judged on ordinary principles.

It lists the statutes. The Copyright Act, the Patents Act, the Trade and Merchandise Marks Act and the Trade Marks Act, the Geographical Indications Act, the Designs Act and the Semiconductor Act. A right outside the list gets no exemption at all.

In one line

Unfair trade practices touching intellectual property are answered in India by five different machineries, and the question asks which one to use.

In exam wording: unfair trade practices relating to intellectual property comprise passing off, counterfeiting and piracy, false and misleading representations as to origin or quality, comparative advertising that denigrates, and misuse of geographical indications, and are curbed in India by civil actions, criminal provisions, customs recordation, consumer protection machinery and administrative action, the international obligation being Article 10bis of the Paris Convention as carried into TRIPS by Article 2.1.

The international obligation first

Paris Article 10bis(1): the countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.

Article 10bis(2): any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

Article 10bis(3) names three: acts creating confusion with a competitor's establishment, goods or activities; false allegations discrediting a competitor; and indications or allegations liable to mislead the public as to the nature, manufacturing process, characteristics, suitability or quantity of goods.

Paris Article 10ter requires appropriate legal remedies and requires members to permit federations and associations of interested parties to take action.

TRIPS Article 2.1 carries Articles 1 to 12 of Paris in, so Article 10bis binds every WTO member, and TRIPS Article 39.1 expressly says that in the course of ensuring effective protection against unfair competition as provided in Article 10bis, members shall protect undisclosed information.

India has no unfair competition statute. That is the point a good answer makes: the obligation is discharged through several separate machineries rather than one.

The five means

1. The civil action

Passing off for unregistered marks and get up, preserved by section 27(2) of the Trade Marks Act.

Infringement under section 29 for registered marks, section 48 of the Patents Act, section 51 of the Copyright Act, section 22 of the Designs Act.

Section 22 of the Geographical Indications Act for infringement of a registered geographical indication, including use that constitutes unfair competition within Article 10bis, which the Indian Act reproduces in its own explanation.

Remedies: injunction, damages or an account of profits, delivery up, and in practice the Anton Piller style order for search and seizure, which is the Indian answer to TRIPS Article 50.

2. The criminal provisions

Sections 103 and 104 of the Trade Marks Act punish applying a false trade mark and selling goods with a false trade mark or false trade description; section 115(4) requires a search warrant to be obtained by an officer not below the rank of Deputy Superintendent of Police, after obtaining the Registrar's opinion.

Section 63 of the Copyright Act punishes infringement knowingly.

In one line

Four technologies are testing the assumptions intellectual property law was built on, and in each case the difficulty is that the law asks a question the technology cannot answer.

In exam wording: contemporary challenges to intellectual property arise principally from artificial intelligence, which unsettles the requirements of human authorship and inventorship and raises questions about training data; from digital networks, which make copying costless and enforcement transnational; from additive manufacturing, which does the same for physical objects; and from biotechnology and genetic resources, which test the boundaries of patentable subject matter and the ownership of traditional knowledge.

1. Artificial intelligence

Three separate questions, and candidates run them together.

Who is the author of a machine generated work? Section 2(d)(vi) of the Copyright Act 1957 defines the author of a computer generated literary, dramatic, musical or artistic work as the person who causes the work to be created. That was drafted for computer assisted works, and whether it fits a generative model is untested in India.

Who is the inventor of a machine generated invention? The DABUS applications, filed worldwide naming an artificial intelligence system as inventor, were refused in almost every jurisdiction on the ground that an inventor must be a natural person. Section 6 of the Indian Patents Act permits an application by any person claiming to be the true and first inventor, and section 2(1)(y) defines the true and first inventor to exclude the first importer and a person to whom an invention was communicated from outside India, which assumes a person.

Is training a model on protected works an infringement? This is the live question everywhere. It engages the reproduction right, and any defence must satisfy the three step test in TRIPS Article 13, so a national fair dealing provision that permitted wholesale copying for training would be exposed.

The treaty position is silent, because no instrument in Module II was drafted with this in mind, and the newest, the GRATK Treaty of 2024, addresses genetic resources rather than machines.

2. Digital networks

Copying became free and instantaneous, which was the problem the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty of 1996 were made to answer.

Their answer had three parts: a right of communication to the public including on demand availability, protection of technological protection measures, and protection of rights management information. India enacted the last two as sections 65A and 65B of the Copyright Act in 2012 and acceded to both treaties in 2018.

What remains unsolved is enforcement. An infringing server can sit anywhere, and territoriality means an Indian injunction binds nobody abroad. Indian courts have responded with dynamic injunctions against websites and their future mirrors, which is judicial improvisation rather than treaty law.

In one line

India has eight intellectual property statutes, three registries under one Controller General, one authority for plant varieties, and since 2021 no specialist appellate tribunal at all.

In exam wording: the Indian intellectual property system comprises eight statutes administered principally by the Office of the Controller General of Patents, Designs and Trade Marks under the Department for Promotion of Industry and Internal Trade, together with the Copyright Office, the Protection of Plant Varieties and Farmers' Rights Authority and the National Biodiversity Authority, appeals lying since the Tribunals Reforms Act 2021 to the High Courts.

The eight statutes

The Patents Act 1970, as amended in 1999, 2002 and 2005 to give effect to TRIPS.

The Copyright Act 1957, as amended in 1994, 1999 and substantially in 2012.

The Trade Marks Act 1999, replacing the Trade and Merchandise Marks Act 1958.

The Designs Act 2000, replacing the designs half of the Indian Patents and Designs Act 1911.

The Geographical Indications of Goods (Registration and Protection) Act 1999, enacted for TRIPS Articles 22 to 24.

The Semiconductor Integrated Circuits Layout-Design Act 2000, for TRIPS Articles 35 to 38.

The Protection of Plant Varieties and Farmers' Rights Act 2001, India's sui generis system under TRIPS Article 27.3(b).

The Biological Diversity Act 2002, amended in 2023, giving effect to the Convention on Biological Diversity and the Nagoya Protocol.

Undisclosed information has no statute, and that is a fact worth stating.

The offices

The Office of the Controller General of Patents, Designs and Trade Marks, at Mumbai, under the Department for Promotion of Industry and Internal Trade in the Ministry of Commerce and Industry. It runs the Patent Office, the Trade Marks Registry, the Design Office and the Geographical Indications Registry at Chennai.

Patent offices at Delhi, Mumbai, Chennai and Kolkata, jurisdiction depending on the applicant's address or place of business. Kolkata is the head office.

The Copyright Office, under the Department for Promotion of Industry and Internal Trade since 2016, having previously been under the Ministry of Human Resource Development.

The Protection of Plant Varieties and Farmers' Rights Authority at New Delhi, under the Ministry of Agriculture.

The National Biodiversity Authority at Chennai, under the Ministry of Environment, Forest and Climate Change.

The Semiconductor Integrated Circuits Layout-Design Registry under the Ministry of Electronics and Information Technology.

The appellate structure, and the change of 2021

Until 2003 appeals from the Controller and the Registrar went to the High Courts.

The Intellectual Property Appellate Board began functioning in 2003 for trade marks and geographical indications and was given patent jurisdiction in 2007. It is the body that dismissed Novartis's appeal, and the body that heard Bayer's appeal against the Natco compulsory licence.

In one line

The University's printed heading for this module is an unfinished sentence, and what completes it is the paper's own title: the international organisations are WIPO and the World Trade Organization, and the agreements are the treaties they administer.

In exam wording: Module II covers the international organisations concerned with intellectual property, principally the World Intellectual Property Organization established by the Convention of 1967 and the World Trade Organization established by the Marrakesh Agreement of 1994, together with the twenty eight treaties WIPO administers and the further instruments that bear on intellectual property, including the UPOV Convention and the Convention on Biological Diversity.

What the University prints, exactly

The syllabus for this paper is Circular UG/165 of 2016-17, page 16. Under the heading GROUP III LAW OF INTELLECTUAL PROPERTY AND INFORMATION TECHNOLOGY, and under "Paper I, Intellectual Property and International Organisations and Agreements", the four modules are printed with one numbered topic each.

Module II reads, in full: "2. International Organisation and".

That is the whole line. There is nothing after the word "and", and the module has no other topic. The transcription is in the authority base for this book so that a reader can check it.

This is not a parsing failure. The same four lines with the same break are what the published syllabus page renders, because both were cut from the same page of the same circular.

What completes the sentence, and on what authority

Three sources, and none of them is our own preference.

1. The paper's own printed title. MU heads the paper "Intellectual Property and International Organisations and Agreements". The word missing after "and" is therefore "Agreements", and the module is about organisations and agreements.

2. The eight papers the University has actually set. Across them she has asked for the objectives, functions, organs, scope, limitations and membership of WIPO on seven papers; for the origin, functions, structure, rounds and accession process of the World Trade Organization on eight; and by name for the Madrid Agreement three times, the Patent Cooperation Treaty twice, the Budapest Agreement, the Lisbon Agreement, the Rome Convention, the Paris Convention, the Berne Convention and copyright and related treaties.

3. WIPO's own statement of what it administers. WIPO states that it administers twenty eight treaties including the WIPO Convention, and names each of them.

So the module is not guessed. Its boundary is declared once, in this book's coverage contract, and every treaty in it is proved article by article against its own text before a single chapter is written.

What this module contains

Two organisations, taught as organisations. WIPO: why it was needed, what it does, how a State joins, what its organs are, and what it cannot do. The World Trade Organization: where it came from, what it does, how a State joins, and how a TRIPS dispute travels through it.

In one line

An international exhibition in Vienna in 1873 could not attract foreign inventors, because showing an invention abroad destroyed the chance of patenting it there, and the machinery of Module II grew out of that one practical problem.

In exam wording: the international system for the protection of intellectual property originated in the recognition that the strictly territorial character of national rights obstructed international trade and exhibition, the immediate occasion being the Vienna World Exhibition of 1873, from which followed the Vienna Congress of 1873, the Paris Congress of 1878 and the Paris Convention of 1883.

The problem, in 1873

Rights were territorial then as now, but there was no priority period, no national treatment obligation and no way to file abroad without doing it at once.

Three practical consequences.

Publication destroyed novelty everywhere. An inventor who exhibited a machine in Vienna had published it, so a patent could no longer be obtained in any country that had not already granted one.

Foreigners were treated worse than nationals, deliberately. Many countries either refused patents to foreigners or imposed extra conditions.

Filing abroad had to be simultaneous. With no priority period, an inventor who filed in France on Monday and in Belgium on Friday could be defeated by the Monday publication of the French application.

And the incident that made it political. The Austro-Hungarian government invited the world to the Vienna World Exhibition of 1873, and foreign exhibitors, particularly from the United States, refused to come because their inventions would be unprotected.

What was done about it

Austria passed a temporary law giving foreign exhibitors protection for their inventions, trade marks and designs shown at the exhibition. That is the direct ancestor of Article 11 of the Paris Convention, which requires countries of the Union to grant temporary protection to patentable inventions, utility models, industrial designs and marks in respect of goods exhibited at official or officially recognised international exhibitions.

The Congress of Vienna for Patent Reform, 1873. It resolved that the protection of inventions should be guaranteed by the laws of all civilised nations, and it called for an international understanding.

The International Congress on Industrial Property, Paris, 1878. It resolved that an international union should be created and asked the French government to convene a diplomatic conference.

A draft was prepared in 1880 and the diplomatic conference of 1883 adopted it. The Paris Convention for the Protection of Industrial Property was signed on 20 March 1883 by eleven States and entered into force on 7 July 1884.

Copyright followed the same road three years later. The Association Littéraire et Artistique Internationale, founded in 1878 with Victor Hugo as its president, pressed for a convention, and the Berne Convention was concluded on 9 September 1886.

In one line

The Paris Convention creates a Union of States that agree to treat each other's nationals as their own in industrial property, and its first article defines industrial property much more widely than the name suggests.

In exam wording: the Paris Convention for the Protection of Industrial Property of 20 March 1883, last revised at Stockholm on 14 July 1967 and amended on 28 September 1979, constitutes the countries to which it applies into a Union for the protection of industrial property, Article 1 defining the objects of that protection and Articles 19 to 30 governing special agreements, ratification, accession, territories, denunciation, disputes and transitional matters.

Article 1: the Union and what it covers

Article 1(1): the countries to which this Convention applies constitute a Union for the protection of industrial property.

Article 1(2) is the definition, and it is wider than the phrase suggests. The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.

Two things in that list surprise students. Trade names are there, and they need no registration under Article 8. And the repression of unfair competition is there, which is why Article 10bis exists and why TRIPS Article 39 on trade secrets can be built on it.

Article 1(3) is the widening clause: industrial property shall be understood in the broadest sense, and shall apply not only to industry and commerce proper but likewise to agricultural and extractive industries and to all manufactured or natural products, for example wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers and flour.

Article 1(4): patents include the various kinds of industrial patents recognised by the laws of the countries of the Union, such as patents of importation, patents of improvement, patents and certificates of addition.

Article 19: special agreements

Article 19: it is understood that the countries of the Union reserve the right to make separately between themselves special agreements for the protection of industrial property, in so far as these agreements do not contravene the provisions of this Convention.

This one sentence is the constitutional basis of most of Module II. The Madrid Agreement, the Madrid Protocol, the Hague Agreement, the Nice Agreement, the Patent Cooperation Treaty, the Budapest Treaty, the Trademark Law Treaty and the Patent Law Treaty are all special agreements within Article 19.

Berne has its own equivalent in Article 20, and it is the basis of the WIPO Copyright Treaty.

Articles 20 to 24: joining and territory

Article 20: ratification or accession by countries of the Union, and entry into force three months after notification, subject to declarations.

In one line

National treatment means a country must give the nationals of other member countries exactly what it gives its own, no more and no less.

In exam wording: national treatment, established by Article 2 of the Paris Convention and extended by Article 3, requires each country of the Union to grant to nationals of other countries of the Union the same protection and the same legal remedy against infringement as it grants to its own nationals, without any condition of domicile or establishment, subject only to the express reservation of national provisions on judicial and administrative procedure, jurisdiction and the designation of an address for service.

Article 2, clause by clause

Article 2(1): nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as nationals, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.

Read that sentence twice, because three things are in it.

"The advantages that their respective laws now grant, or may hereafter grant": the obligation is dynamic, so an improvement a country makes for its own nationals must be extended to foreigners automatically.

"Without prejudice to the rights specially provided for by this Convention": national treatment is a floor and the Convention's own minimum rules sit on top of it.

"Provided that the conditions and formalities imposed upon nationals are complied with": a foreigner must follow the same rules, so no exemption from fees, deadlines or forms.

Article 2(2) is the provision that made the obligation real: no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights.

Why that mattered in 1883. Several countries required a foreign applicant to have a domicile or a business establishment locally, which for a small inventor was a prohibition dressed as a formality. Article 2(2) removed it.

Article 2(3) is the reservation, and it must be quoted with the rule. The provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure and to jurisdiction, and to the designation of an address for service or the appointment of an agent, which may be required by the laws on industrial property, are expressly reserved.

So a country may require a foreigner to appoint a local agent and to give an address for service, and India does: rule 5 of the Patents Rules requires an address for service in India.

In one line

Filing in one member country buys you twelve months, or six for marks and designs, in which to file in all the others and be treated as though you had filed everywhere on the first day.

In exam wording: the right of priority under Article 4 of the Paris Convention entitles a person who has duly filed an application for a patent, a utility model, an industrial design or a trademark in one country of the Union, or that person's successor in title, to file in the other countries of the Union within twelve months for patents and utility models and six months for industrial designs and trademarks, such subsequent filing being treated as if it had been made on the date of the first filing.

Why the law has this at all

Because without it, filing abroad had to be simultaneous. An inventor who filed in France on Monday and Belgium on Friday could be defeated in Belgium by the publication of the French application, or by a third party who filed in Belgium on Wednesday.

And because deciding where to file costs money and takes time. Translations, foreign agents, official fees. Twelve months is time to raise the money, find a licensee, or discover that the invention is worthless.

It is the reason the Vienna problem of 1873 was solved, and it is the single provision practitioners use most often.

The provision, article by article

Article 4A(1): any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed.

Article 4A(2): any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognised as giving rise to the right of priority. This is what makes a Patent Cooperation Treaty international application a priority founding filing.

Article 4A(3): a regular national filing means any filing that is adequate to establish the date on which the application was filed in the country concerned, whatever may be the subsequent fate of the application. So an application that is later abandoned or refused still founds priority.

Article 4C(1): the periods are twelve months for patents and utility models and six months for industrial designs and trademarks.

Article 4C(2): the periods start from the date of filing of the first application, and the day of filing is not included.

In one line

A patent granted in one country is legally unconnected to a patent for the same invention anywhere else, and a country may attack a patentee who does not work the invention but may not simply take the patent away.

In exam wording: Article 4bis establishes the independence of patents obtained in different countries of the Union as regards grounds of nullity, forfeiture and duration; Article 5 governs importation, working, compulsory licences, the grace period for maintenance fees, industrial designs, marks and the marking of goods; and Article 6 establishes the independence of marks and the freedom of each country to fix its own conditions of filing and registration.

Article 4bis: independence of patents

Article 4bis(1): patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not.

Article 4bis(2): the foregoing provision is to be understood in an unrestricted sense, in particular in the sense that patents applied for during the period of priority are independent, both as regards the grounds for nullity and forfeiture, and as regards their normal duration.

Article 4bis(3): it applies to all patents existing at the time when it comes into effect.

Article 4bis(4): it applies in the case of accession, to patents existing on either side at the time of accession.

Article 4bis(5): patents obtained with the benefit of priority shall, in the various countries of the Union, have a duration equal to that which they would have had if applied for or granted without the benefit of priority. So the priority claim does not shorten the term.

Why this matters. Before 1883 some countries provided that a domestic patent lapsed when the foreign patent for the same invention lapsed, so an inventor lost a domestic right through a foreign accident. Article 4bis abolished that.

Article 5: the balance between the patentee and the State

Article 5A(1): importation by the patentee into the country where the patent has been granted of articles manufactured in any of the countries of the Union shall not entail forfeiture of the patent.

Article 5A(2): each country of the Union shall have the right to take legislative measures providing for the grant of compulsory licences to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example failure to work.

Article 5A(3): forfeiture of the patent shall not be provided for except in cases where the grant of compulsory licences would not have been sufficient to prevent the abuses, and no proceedings for forfeiture or revocation may be instituted before the expiration of two years from the grant of the first compulsory licence.

In one line

A mark can be protected in a country where it was never registered if it is well known there, State emblems and official signs are protected without any registration at all, and a trade name needs no filing anywhere.

In exam wording: Articles 6bis to 9 of the Paris Convention require the protection of well known marks against reproduction, imitation or translation liable to create confusion; the refusal and invalidation of marks reproducing State emblems, official signs and the emblems of intergovernmental organisations under Article 6ter; the protection of the proprietor against an agent registering the mark in its own name under Article 6septies; the protection of trade names without registration under Article 8; and the seizure of goods unlawfully bearing a mark or trade name under Article 9.

Article 6bis: well known marks

Article 6bis(1): the countries of the Union undertake, ex officio if their legislation so permits, or at the request of an interested party, to refuse or to cancel the registration, and to prohibit the use, of a trademark which constitutes a reproduction, an imitation, or a translation, liable to create confusion, of a mark considered by the competent authority of the country of registration or use to be well known in that country as being already the mark of a person entitled to the benefits of this Convention and used for identical or similar goods.

Three features of that sentence.

Registration is not required in the protecting country. The mark must be well known there, not registered there. This is the single largest departure from territoriality in the Convention.

"Reproduction, imitation or translation". The translation limb matters in India, where a mark may be transliterated into another script.

"Identical or similar goods". Paris confines Article 6bis to similar goods; TRIPS Article 16.3 extends it to dissimilar goods, provided use would indicate a connection and the interests of the owner would be damaged.

Article 6bis(2): a period of at least five years from the date of registration shall be allowed for requesting cancellation, and countries may fix a period for prohibiting use.

Article 6bis(3): no time limit shall be fixed for requesting the cancellation or the prohibition of the use of marks registered or used in bad faith.

Indian enactment. Sections 11(6) to 11(9) of the Trade Marks Act 1999 set out the factors for determining whether a mark is well known and, in section 11(9), the conditions that may not be required: that the mark has been used in India, that it has been registered, that an application has been filed in India, that it is well known in any jurisdiction other than India, or that it is well known to the public at large in India.

In one line

The Convention closes with the obligations that are not about registered rights at all: it forbids false indications of source, requires effective protection against unfair competition, and requires every member to run a patent office.

In exam wording: Articles 10 to 12 of the Paris Convention require seizure of goods bearing a false indication of source or of the identity of the producer, effective protection against unfair competition as defined in Article 10bis, appropriate legal remedies and standing for interested associations under Article 10ter, temporary protection for goods exhibited at official international exhibitions under Article 11, and the establishment by each country of a special industrial property service and a central office under Article 12.

Article 10: false indications of source

Article 10(1): the provisions of Article 9 shall apply in cases of direct or indirect use of a false indication of the source of the goods or the identity of the producer, manufacturer or merchant.

Article 10(2): any producer, manufacturer or merchant engaged in the production, manufacture or trade in such goods and established either in the locality falsely indicated as the source, or in the region where that locality is situated, or in the country falsely indicated, or in the country where the false indication of source is used, shall in any case be deemed an interested party.

Why it matters here. This is the seed from which the whole law of geographical indications grew, through the Madrid Agreement on false indications of 1891, the Lisbon Agreement of 1958, and finally TRIPS Articles 22 to 24.

Article 10bis: unfair competition

Article 10bis(1): the countries of the Union are bound to assure to nationals of such countries effective protection against unfair competition.

Article 10bis(2): any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

Article 10bis(3): the following in particular shall be prohibited:

(1) all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities of a competitor;

(2) false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities of a competitor;

(3) indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.

Two things follow that a candidate should say.

The list is illustrative, not exhaustive. The words "in particular" mean that any act contrary to honest practices qualifies, and the three named classes are examples.

In one line

The Paris Union has an Assembly of its members, an Executive Committee, and a secretariat that is the International Bureau of WIPO, and the administrative articles can be amended by the Assembly while the substantive ones can be changed only by a diplomatic conference.

In exam wording: Articles 13 to 17 of the Paris Convention establish the Assembly of the Union, the Executive Committee, the International Bureau and the finances of the Union, and provide for amendment of Articles 13 to 17 by the Assembly, Article 18 reserving revision of Articles 1 to 12 and 18 to 30 to a conference of representatives of the countries of the Union.

Why the Convention has these articles at all

Because a Union needs a body that can act. Somebody has to publish, to collect contributions, to convene conferences and to keep the register of accessions.

And because the substantive articles were unamendable in practice. Every revision of Articles 1 to 12 needed a diplomatic conference and unanimity, and the last one was at Stockholm in 1967. The Stockholm Act created a machinery that could adapt without one, and the amendment of 1979 used it.

Article 13: the Assembly

Article 13(1)(a): the Union shall have an Assembly consisting of those countries of the Union which are bound by Articles 13 to 17.

Article 13(2)(a) sets out the tasks. The Assembly deals with all matters concerning the maintenance and development of the Union and the implementation of the Convention; gives directions to the International Bureau concerning revision conferences; reviews and approves the reports and activities of the Director General concerning the Union; elects the members of the Executive Committee; reviews and approves the Executive Committee's reports; determines the programme and adopts the biennial budget of the Union and approves its final accounts; adopts the financial regulations; establishes such committees and working groups as it considers appropriate; determines which countries not members of the Union and which intergovernmental and international non governmental organisations shall be admitted as observers; adopts amendments to Articles 13 to 17; takes any other appropriate action designed to further the objectives of the Union; and performs such other functions as are appropriate under the Convention.

Article 13(3): each country has one vote.

Article 13(4): the Assembly meets in ordinary session once every two years, convened by the Director General, and in extraordinary session on the request of the Executive Committee or of one fourth of the member countries.

Article 13(5): one half of the countries members of the Assembly constitutes a quorum, with a mechanism allowing decisions taken with a smaller quorum to become effective if enough countries later communicate their vote in writing.

In one line

The Berne Convention creates a Union of States that protect each other's authors automatically, without registration, and it has been revised seven times since 1886.

In exam wording: the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, last revised at Paris on 24 July 1971 and amended on 28 September 1979, constitutes the countries to which it applies into a Union for the protection of the rights of authors in their literary and artistic works, Article 1 establishing the Union and Articles 27 to 38 governing revision, acceptance of Acts, denunciation, disputes and transitional matters.

Article 1 and the shape of the Convention

Article 1: the countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.

Note what is different from Paris. Paris Article 1(1) speaks of the protection of industrial property; Berne Article 1 speaks of the protection of the rights of authors. The subject of the Berne Union is a person, not a category of property, and that difference runs through the whole instrument and produces moral rights.

The seven Acts, and why they matter

Berne 1886, the original.

Paris Additional Act 1896.

Berlin 1908, which introduced the rule against formalities and the term of life plus fifty.

Berne Additional Protocol 1914.

Rome 1928, which introduced moral rights in Article 6bis. India was bound from this Act.

Brussels 1948.

Stockholm 1967, whose substantive provisions never came into force, its Protocol Regarding Developing Countries having been rejected.

Paris 1971, the Act now in force, which replaced the Stockholm Protocol with the Appendix.

Amended 28 September 1979.

Why the Stockholm failure matters. The Protocol Regarding Developing Countries would have permitted much wider compulsory licensing for translation and reproduction. The industrialised countries would not accept it, and the compromise reached at Paris in 1971 is the Appendix, whose conditions are so demanding that almost nobody has used it. That is worked in [Berne: The Appendix for Developing Countries, Article 21 and Articles I to VI].

Articles 27 to 32: revision and the relationship between Acts

Article 27(1): this Convention shall be submitted to revision with a view to the introduction of amendments designed to improve the system of the Union.

Article 27(2): for this purpose, conferences shall be held successively in one of the countries of the Union among the delegates of the said countries.

Article 27(3): amendments to Articles 22 to 26, the administrative articles, are governed by Article 26, and revision of the rest requires unanimity of the votes cast.

Unanimity, not a majority. That is why Berne has not been revised since 1971, and why the WIPO Copyright Treaty of 1996 had to be made as a special agreement under Article 20 instead.

In one line

Berne protects every production in the literary, scientific and artistic domain whatever its form, gives an author of one member country the same protection in every other, and forbids any registration requirement.

In exam wording: Articles 2 to 5 of the Berne Convention define the protected works, permit certain optional exclusions, establish the points of attachment by which an author becomes entitled to protection, and lay down the principles of national treatment, automatic protection and independence of protection, Article 5(2) providing that the enjoyment and exercise of the rights shall not be subject to any formality.

Article 2: what is protected

Article 2(1) is one of the most quoted sentences in international law. The expression literary and artistic works shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three dimensional works relative to geography, topography, architecture or science.

"Every production" and "whatever may be the mode or form" make the list illustrative. That is why computer programs could be protected as literary works without amending the Convention, and TRIPS Article 10.1 says so expressly.

Article 2(2) is optional: it is a matter for legislation in the countries of the Union to prescribe that works in general, or any specified categories, shall not be protected unless they have been fixed in some material form. India requires fixation for some categories and not for others.

Article 2(3): translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work.

Article 2(4): it is a matter for legislation to determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of them. This is the provision that permits section 52(1)(q) of the Indian Copyright Act, which is what makes it lawful for this book to reproduce statutes and judgments.

Article 2(5): collections of literary or artistic works which by reason of the selection and arrangement of their contents constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works. TRIPS Article 10.2 extends the same to compilations of data.

In one line

An author keeps the right to be named as author and to object to mutilation of the work even after selling the copyright, and the minimum term everywhere is the author's life and fifty years.

In exam wording: Article 6bis of the Berne Convention confers on the author, independently of the economic rights and even after their transfer, the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to his honour or reputation; and Article 7 fixes the minimum term of protection at the life of the author and fifty years after his death, with special rules for cinematographic, anonymous, pseudonymous, photographic and applied art works.

Article 6: works of nationals of countries outside the Union

Article 6(1) is the retaliation provision, and it is easy to confuse with 6bis. Where a country outside the Union fails to protect in an adequate manner the works of authors who are nationals of a country of the Union, the latter country may restrict the protection given to works whose authors are, at the date of first publication, nationals of the other country and are not habitually resident in a country of the Union.

Article 6(2): no such restriction shall affect rights acquired in respect of a work published before the restriction came into force.

Article 6(3): countries restricting protection shall notify the Director General, who shall communicate the fact to all countries of the Union.

Article 6bis: moral rights

Article 6bis(1): independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.

Two rights, and both must be named. The right of attribution or paternity, and the right of integrity.

Article 6bis(2): the rights shall, after the author's death, be maintained at least until the expiry of the economic rights and shall be exercisable by the persons or institutions authorised by national legislation. A country whose legislation at the time of ratification did not provide for post mortem protection of all those rights may provide that some cease on death.

Article 6bis(3): the means of redress are governed by the legislation of the country where protection is claimed.

Where it came from. Moral rights entered the Convention at the Rome revision of 1928, under the influence of the French and German droit moral tradition, and they are the clearest sign that Berne protects an author rather than a category of property.

In one line

Berne gives an author the rights of translation, reproduction, public performance, broadcasting, recitation, adaptation and cinematographic exploitation, and lets each country carve out narrow exceptions on conditions that became the three step test.

In exam wording: Articles 8 to 14ter of the Berne Convention confer the exclusive rights of translation, reproduction, public performance, broadcasting and communication to the public, public recitation, adaptation and arrangement, and cinematographic adaptation and reproduction, together with the resale right in Article 14ter, subject to the exceptions those articles permit and to the general condition in Article 9(2).

Article 8: translation

Article 8: authors of literary and artistic works protected by this Convention shall enjoy the exclusive right of making and of authorising the translation of their works throughout the term of protection of their rights in the original works.

Why it is first. Translation was the first right that international copyright had to address, because a book crossing a border arrives in another language, and the earliest bilateral treaties of the nineteenth century were about translation.

Article 9: reproduction, and the three step test

Article 9(1): authors shall have the exclusive right of authorising the reproduction of these works, in any manner or form.

Article 9(2) is the most important sentence in international copyright limitations. It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

Three steps, and they are cumulative. Certain special cases. No conflict with normal exploitation. No unreasonable prejudice to legitimate interests.

Article 9(3): any sound or visual recording shall be considered as a reproduction.

What TRIPS did with it. TRIPS Article 13 generalises the three conditions from the reproduction right to all exclusive rights and all works, and the WTO panel in United States: Section 110(5) of US Copyright Act is the leading interpretation.

Facts. Section 110(5) of the United States Copyright Act exempted small businesses from paying royalties for playing radio and television music on their premises. The European Communities complained that the exemption breached TRIPS Article 9.1 read with Berne Articles 11bis(1)(iii) and 11(1)(ii). The dispute is WT/DS160.

Held. The panel report was circulated on 15 June 2000 and adopted on 27 July 2000. Applying the three step test in TRIPS Article 13, the panel found the business exemption in subparagraph (B) inconsistent with it, while the narrower homestyle exemption in subparagraph (A) satisfied the test.

Why it matters. Every national exception, including the whole of section 52 of the Indian Copyright Act, has to fit inside those three conditions, and this is the only case that has construed them.

In one line

An author whose name appears on a work is presumed to be the author, infringing copies may be seized, a country may not use morality as a cover for censorship of foreign works alone, and works still protected somewhere when a country joins do not fall into the public domain by the joining.

In exam wording: Articles 15 to 20 of the Berne Convention establish presumptions as to authorship and as to the maker of a cinematographic work, require the seizure of infringing copies, preserve national powers of control over circulation on grounds of public order, apply the Convention to works not yet in the public domain at its entry into force, permit greater protection under national law, and reserve the right of countries to make special agreements.

Article 15: presumptions

Article 15(1): in order that the author of a literary or artistic work protected by this Convention shall, in the absence of proof to the contrary, be regarded as such and consequently be entitled to institute infringement proceedings, it shall be sufficient for his name to appear on the work in the usual manner. This applies even if the name is a pseudonym, where the pseudonym adopted leaves no doubt as to identity.

Why it matters. Because there is no register, an author would otherwise have to prove authorship from scratch in every case. The presumption is what makes copyright litigation practicable, and section 55(2) of the Indian Copyright Act is the domestic equivalent.

Article 15(2): the person whose name appears on a cinematographic work in the usual manner shall, in the absence of proof to the contrary, be presumed to be the maker.

Article 15(3): for anonymous and pseudonymous works other than those in 15(1), the publisher whose name appears on the work shall be deemed to represent the author and to be entitled to protect and enforce the author's rights, the presumption ceasing when the author reveals his identity.

Article 15(4) is the folklore provision, and it matters for Module IV. For unpublished works where the identity of the author is unknown but there is every ground to presume that he is a national of a country of the Union, that country may designate a competent authority to represent the author and to protect and enforce his rights, and shall notify the Director General.

Article 16: seizure

Article 16(1): infringing copies of a work shall be liable to seizure in any country of the Union where the work enjoys legal protection.

Article 16(2): the provisions of paragraph 1 shall also apply to reproductions coming from a country where the work is not protected, or has ceased to be protected.

In one line

The Berne Appendix lets a developing country grant compulsory licences to translate and to reproduce foreign works for teaching and research, on conditions so demanding that the machinery has been used almost never.

In exam wording: Article 21 of the Berne Convention brings in an Appendix which forms an integral part of the Convention and which permits a country regarded as a developing country in conformity with the practice of the General Assembly of the United Nations to substitute, by declaration, compulsory licences for the exclusive rights of translation under Article II and of reproduction under Article III, subject to the conditions in Articles I to VI.

Why this Appendix exists

Because of the failure of the Stockholm Protocol. At the Stockholm revision conference of 1967 the developing countries obtained a Protocol Regarding Developing Countries which would have permitted wide compulsory licensing for translation and reproduction, shorter terms and broad teaching exceptions.

The industrialised countries refused to ratify. The result was that the substantive provisions of the Stockholm Act never entered into force at all, and the Union faced the prospect of a split.

The Paris revision of 1971 was the compromise. The Protocol was withdrawn and replaced by this Appendix, which grants the same kinds of licence but hedges them with conditions.

And the immediate context was the alternative forum. UNESCO administered the Universal Copyright Convention, to which many developing countries were party, and there was a real prospect of countries leaving Berne for it. The Appendix and the parallel amendment of the Universal Copyright Convention in 1971 were negotiated together.

The Appendix, article by article

Article I(1): any country regarded as a developing country in conformity with the established practice of the General Assembly of the United Nations may, by a notification deposited with the Director General at the time of ratification or accession or at any later time, declare that it will avail itself of the faculty provided for in Article II, in Article III, or in both.

Article I(2): any such declaration is effective for ten years from the entry into force of the Paris Act, or for the balance of that period, and is renewable for further ten year periods.

Article I(3) and I(5): a country that ceases to be regarded as a developing country loses the faculty, but a declaration remains effective for a defined transitional period.

Article II is the translation licence. Any country that has declared under Article I may substitute for the exclusive right of translation in Article 8 a system of non exclusive and non transferable licences, granted by the competent authority, to translate a work into a language in general use in that country and to publish the translation in printed or analogous forms of reproduction, for the purpose of teaching, scholarship or research.

In one line

The Berne Union has the same administrative machinery as the Paris Union, run by the same International Bureau, and its administrative articles can be amended by its Assembly while its substantive articles cannot.

In exam wording: Articles 22 to 26 of the Berne Convention establish the Assembly of the Union, the Executive Committee, the International Bureau, the finances of the Union and the procedure for amending Articles 22 to 26, the substantive provisions being revisable only by a conference under Article 27 and only by unanimity.

The design point first

The Stockholm Act of 1967 gave Berne and Paris identical machinery on purpose, so that one Organization could serve both Unions. The chapter on the administration of the Paris Convention sets that machinery out article by article. This chapter therefore states what Berne has, names the three places where the wording differs, and does not repeat the Paris text.

Articles 22 to 26 in outline

Article 22, the Assembly, consisting of those countries of the Union bound by Articles 22 to 26, each with one vote, meeting in ordinary session once every second calendar year, with a quorum of one half and decisions by a two thirds majority of the votes cast. Its tasks are those of the Paris Assembly: the maintenance and development of the Union and the implementation of the Convention, directions to the International Bureau on revision conferences, review and approval of the Director General's reports, election of and review of the Executive Committee, the programme and biennial budget and final accounts, the financial regulations, committees of experts and working groups, admission of observers, amendment of Articles 22 to 26, and any other appropriate action.

Article 23, the Executive Committee, elected by the Assembly from among its members, with the country hosting the Organization holding an ex officio seat, its number corresponding to one fourth of the members of the Assembly, elected with due regard to equitable geographical distribution and to the representation of countries party to the special agreements made in relation with the Union. It prepares the Assembly's draft agenda, submits proposals on the draft programme and budget, submits periodical reports and accounts, and takes the measures necessary to execute the programme, meeting once a year, preferably alongside the Coordination Committee.

Article 24, the International Bureau, performing the administrative tasks, providing the secretariat of the organs of the Union, with the Director General as chief executive; assembling and publishing information on the protection of copyright, each country communicating its new laws promptly; publishing a monthly periodical; furnishing information on request; and conducting studies and providing services.

Article 25, finance, with the contribution classes running from class I at twenty five units to class VII at one unit at the time of the Paris Act, each country choosing its class on accession and free to change it, contributions due on the first of January, and a country whose arrears equal or exceed two full years' contributions losing its vote unless the organ is satisfied that the delay results from exceptional and unavoidable circumstances.

In one line

The Paris and Berne Conventions each created a small bureau, the two were merged in 1893, the merged office moved from Berne to Geneva in 1960, and in 1967 it became the World Intellectual Property Organization.

In exam wording: the World Intellectual Property Organization is the institutional successor of the Bureaux established by the Paris Convention of 1883 and the Berne Convention of 1886, which were united in 1893 as the United International Bureaux for the Protection of Intellectual Property, known by the French abbreviation BIRPI, and which were transformed by the Convention Establishing the World Intellectual Property Organization, signed at Stockholm on 14 July 1967 and in force from 26 April 1970.

The two bureaux

Paris 1883 created a bureau. Article 13 of the original Convention provided for an International Office under the high authority of the Swiss government.

Berne 1886 created another. The same arrangement, in Berne, under the same Swiss supervision.

Both were tiny. Their work was to publish a periodical, to receive notifications of accession, to collect and distribute national laws, and to prepare revision conferences. In their first years each had a handful of staff.

Why Switzerland. Because it was neutral, because it was central, and because neither France nor Germany would accept the other as the depositary of the other Union's bureau.

The union of 1893

The two offices were combined into a single administration in 1893, under the name that in French is Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle, abbreviated BIRPI.

It stayed in Berne until 1960, when it moved to Geneva, to be near the United Nations and the specialised agencies.

What BIRPI could and could not do. It could administer, publish and convene. It could not decide anything, could not enforce anything, and had no membership of its own separate from the two Unions.

Why an organisation was needed

Four reasons, and each is examinable.

1. There were two Unions and one secretariat, and no single body could speak for both. A country could be a member of Paris, of Berne, of both, or of neither, and there was no forum in which intellectual property as a whole could be discussed.

2. The special agreements had multiplied. Madrid 1891, Madrid Protocol on false indications 1891, Hague 1925, Nice 1957, Lisbon 1958. Each had its own union, its own assembly and its own membership, all administered by the same office.

3. The United Nations system had been created and BIRPI was outside it. UNESCO administered the Universal Copyright Convention of 1952 and was making a claim to the copyright field; the International Labour Organization had an interest in performers. Without a proper organisation, intellectual property risked being absorbed.

In one line

The Convention Establishing WIPO creates an organisation to promote the protection of intellectual property throughout the world and to ensure administrative cooperation among the Unions, and its own definition of intellectual property is the widest in international law.

In exam wording: the Convention Establishing the World Intellectual Property Organization, signed at Stockholm on 14 July 1967 and amended on 28 September 1979, establishes by Article 1 the World Intellectual Property Organization, defines in Article 2 the terms used including intellectual property in Article 2(viii), and provides in Articles 20 and 21 for ratification, accession and entry into force, the Convention having entered into force on 26 April 1970.

Article 1: establishment

Article 1: the World Intellectual Property Organization is hereby established.

Four words, and everything else follows from them. Until 1967 there was no organisation, only two Unions and a joint secretariat.

Article 2: the definitions

Article 2 defines nine terms, and three of them are worth quoting.

Article 2(i): "Organization" shall mean the World Intellectual Property Organization.

Article 2(iii): "Paris Union" shall mean the Union established by the Paris Convention. Article 2(iv): "Berne Union" shall mean the Union established by the Berne Convention.

Article 2(v): "Unions" shall mean the Paris Union, the Special Unions and Agreements established in relation with that Union, the Berne Union, and any other international agreement designed to promote the protection of intellectual property whose administration is assumed by the Organization according to Article 4(iii).

Article 2(viii) is the definition that matters. "Intellectual property" shall include the rights relating to:

literary, artistic and scientific works;

performances of performing artists, phonograms, and broadcasts;

inventions in all fields of human endeavour;

scientific discoveries;

industrial designs;

trademarks, service marks, and commercial names and designations;

protection against unfair competition;

and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Three observations a good answer makes.

It is open ended. The last limb means a right that does not yet exist can fall inside the definition, and the GRATK Treaty of 2024 is an illustration.

It includes scientific discoveries, which no national patent law protects and which section 3(c) of the Indian Patents Act expressly excludes. The Geneva Treaty on the International Recording of Scientific Discoveries of 1978 was made to give them a home and it never entered into force.

It includes protection against unfair competition, which is not a right in anybody but an obligation on States, carried over from Paris Article 1(2).

Articles 20 and 21: joining and entry into force

Article 20(1): the Convention shall be ratified by signatory States and shall be open to accession.

Article 21 sets out the entry into force scheme, which required ratifications or accessions by ten member States of the Paris Union and seven of the Berne Union.

In one line

WIPO has two objectives, to promote the protection of intellectual property throughout the world and to ensure administrative cooperation among the Unions, and six functions by which it pursues them.

In exam wording: Article 3 of the Convention Establishing the World Intellectual Property Organization states the objectives of the Organization as being to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organisation, and to ensure administrative cooperation among the Unions; and Article 4 sets out the functions by which the Organization is to attain those objectives.

Article 3: the objectives

Article 3: the objectives of the Organization are:

(i) to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization;

(ii) to ensure administrative cooperation among the Unions.

Two objectives, and they are of very different kinds. The first is substantive and open ended: promoting protection worldwide, by cooperation, and in collaboration with other organisations where appropriate. The second is administrative and closed: making the existing Unions work together.

Three phrases in the first objective repay attention.

"Throughout the world" is why WIPO's membership is wider than any Union's, and why Article 5(2) admits States that belong to no Union at all.

"Through cooperation among States" is the limit. WIPO promotes; it does not compel. There is no obligation on a member to protect anything by virtue of Article 3.

"In collaboration with any other international organization" is the authority for the agreement with the United Nations in 1974, the agreement with the World Trade Organization in 1995, and the joint administration of the Rome Convention with the International Labour Organization and UNESCO.

Article 4: the functions

Article 4 provides that in order to attain the objectives described in Article 3, the Organization, through its appropriate organs and subject to the competence of each of the Unions, shall:

(i) promote the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonize national legislation in this field;

(ii) perform the administrative tasks of the Paris Union, the Special Unions established in relation with that Union, and the Berne Union;

(iii) may agree to assume, or participate in, the administration of any other international agreement designed to promote the protection of intellectual property;

(iv) encourage the conclusion of international agreements designed to promote the protection of intellectual property;

(v) offer its cooperation to States requesting legal technical assistance in the field of intellectual property;

(vi) assemble and disseminate information concerning the protection of intellectual property, carry out and promote studies in this field, and publish the results of such studies;

In one line

Any State that belongs to one of the Unions may join WIPO, and so may a State that belongs to none, provided it belongs to the United Nations system or is invited.

In exam wording: Article 5 of the Convention Establishing the World Intellectual Property Organization provides that membership is open to any State which is a member of any of the Unions, and to any other State satisfying one of four alternative conditions, Articles 14 and 15 governing the manner of becoming party and the entry into force of the Convention for a State, and Article 16 excluding reservations.

Article 5: who may become a member

Article 5(1): membership in the Organization shall be open to any State which is a member of any of the Unions as defined in Article 2(v).

Article 5(2): membership shall be equally open to any State not a member of any of the Unions, provided that:

(i) it is a member of the United Nations, of any of the Specialized Agencies brought into relationship with the United Nations, or of the International Atomic Energy Agency, or is a party to the Statute of the International Court of Justice, or

(ii) it is invited by the General Assembly of the Organization to become a party to this Convention.

Read the structure, because that is what the question tests. There are two routes and the second has two limbs. A Union member joins as of right. A non Union State joins if it satisfies a United Nations system criterion, or if the General Assembly invites it.

Only States may be members. There is no provision for an intergovernmental organisation to accede, which distinguishes WIPO from the World Trade Organization, whose Article XI admits separate customs territories and whose Article XII permits accession by them too. The European Union is a member of the WTO and is not a member of WIPO, though it is a party to several WIPO treaties.

Articles 14 and 15: the manner of becoming a party

Article 14(1): States referred to in Article 5 may become party to this Convention and member of the Organization by signature followed by deposit of an instrument of ratification, or deposit of an instrument of accession.

Article 14(2) deals with the position of a State that is a member of a Union: it may become party to the Convention only if it has previously ratified or acceded to at least the administrative and final clauses of the Stockholm Act of the Paris Convention or of the Berne Convention, or has simultaneously done so.

Why that condition exists. The whole point of the 1967 design was that the Unions and the Organization share machinery, and a Union member still bound only by an older Act would not have the Assembly that plugs into the Organization.

In one line

WIPO has four organs, the General Assembly, the Conference, the Coordination Committee and the International Bureau, and each Union keeps its own assembly beside them.

In exam wording: Articles 6 to 9 of the Convention Establishing the World Intellectual Property Organization establish the General Assembly, the Conference, the Coordination Committee and the International Bureau headed by the Director General, Article 10 governs the headquarters, and Articles 12 and 13 the legal status of the Organization and its relations with other organisations.

Article 6: the General Assembly

Composition. Article 6(1)(a): the General Assembly consists of the States party to this Convention which are members of any of the Unions.

Article 6(1)(b): the Government of each State is represented by one delegate, who may be assisted by alternate delegates, advisors and experts.

Article 6(1)(c): the expenses of each delegation are borne by the Government which appointed it.

Functions, Article 6(2). The General Assembly shall:

(i) appoint the Director General upon the nomination of the Coordination Committee;

(ii) review and approve the reports of the Director General concerning the Organization and give him all necessary instructions;

(iii) review and approve the reports and activities of the Coordination Committee and give it instructions;

(iv) adopt the biennial budget of expenses common to the Unions;

(v) approve the measures proposed by the Director General concerning the administration of the international agreements referred to in Article 4(iii);

(vi) adopt the financial regulations of the Organization;

(vii) determine the working languages of the Secretariat, taking into consideration the practice of the United Nations;

(viii) invite States referred to in Article 5(2)(ii) to become party to this Convention;

(ix) determine which States not members of the Organization and which intergovernmental and international non governmental organisations shall be admitted to its meetings as observers;

(x) exercise such other functions as are appropriate under this Convention.

Article 6(3): each State has one vote.

Article 6(4)(a): the General Assembly meets once in every second calendar year in ordinary session.

Article 6(3)(c) and (d): one half of the members constitutes a quorum, and decisions require two thirds of the votes cast, subject to specified exceptions.

Article 7: the Conference

Composition. Article 7(1)(a): the Conference consists of the States party to this Convention whether or not they are members of any of the Unions.

That single difference from Article 6 is the most examinable fact about the organs.

Functions, Article 7(2). The Conference shall:

(i) discuss matters of general interest in the field of intellectual property and may adopt recommendations relating to such matters, having regard for the competence and autonomy of the Unions;

(ii) adopt the biennial budget of the Conference;

In one line

WIPO has three budgets, its members pay contributions according to a class each chooses for itself, and the Convention can be amended by its own Conference without a diplomatic conference.

In exam wording: Article 11 of the Convention Establishing the World Intellectual Property Organization governs its finances, providing for the budget of expenses common to the Unions, the budget of the Conference and the budgets of the Unions, and establishing the contribution class system; Articles 17 to 19 govern amendment, denunciation and the notifications made by the Director General.

Article 11: the finances

Article 11(1): the Organization shall have two budgets, the budget of expenses common to the Unions and the budget of the Conference.

Article 11(2)(a): the budget of expenses common to the Unions shall include provision for expenses of interest to several Unions.

Article 11(2)(b): this budget shall be financed from the sources named in Article 11(3), that is from the contributions of the Unions themselves, from contributions due from States party to the Convention which are not members of any Union, from payments for services performed by the International Bureau not falling within the framework of a Union, from the sale of publications and royalties, and from gifts, bequests and subventions, and from rents, interests and other miscellaneous income.

Article 11(4) is the contribution class provision, and it is the answer to MU's question about how a developing member's burden is scaled.

Article 11(4)(a): for the purpose of establishing its contribution towards the budget of expenses common to the Unions, each State party to this Convention which is not a member of any of the Unions shall belong to a class, and shall pay its annual contributions on the basis of a number of units.

The classes at the time of the Convention were class A at ten units, class B at three units, and class C at one unit.

Article 11(4)(b): each State indicates, at the time of depositing its instrument, the class to which it wishes to belong, and may change class.

Article 11(5): a State in arrears may not exercise its right to vote in any organ of which it is a member if the amount of its arrears equals or exceeds the amount of the contributions due from it for the two preceding full years, though the organ may allow it to continue to vote if satisfied that the delay is due to exceptional and unavoidable circumstances.

Article 11(6): if the budget is not adopted before the beginning of a new financial period, it shall be at the same level as the budget of the previous year.

Article 11(7): the International Bureau shall be entitled to receive and to make payments for services provided by it.

In one line

WIPO today runs four global registration systems, a set of standing committees where new treaties are negotiated, an arbitration and mediation centre, and a development programme, and it still cannot make a member do anything.

In exam wording: the World Intellectual Property Organization discharges its functions today through the global protection systems it administers, through standing committees on patents, trademarks, copyright, enforcement and genetic resources in which norm setting is negotiated, through the WIPO Arbitration and Mediation Center, through its databases and technical assistance programmes, and through the Development Agenda adopted in 2007, its limitations remaining those of an organisation with no legislative and no adjudicative power.

The four global systems

The Patent Cooperation Treaty system, by far the largest, handling international patent applications.

The Madrid system for the international registration of marks.

The Hague system for the international registration of industrial designs.

The Lisbon system for appellations of origin and, since the Geneva Act of 2015, geographical indications.

Two things to say about them in an answer. They are the Article 4(vii) function in action, and they are the source of most of the Organization's income, which is why WIPO behaves in part like a service provider.

And a limit. None of them grants a right. Each administers an application or a registration whose effect remains national.

The standing committees

They are where norm setting actually happens, because a diplomatic conference is convened only when a text is ready.

The Standing Committee on the Law of Patents, where the substantive patent law treaty negotiation stalled and where disclosure of origin was debated for two decades before the GRATK Treaty.

The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications, from which the Singapore Treaty and the Riyadh Design Law Treaty came.

The Standing Committee on Copyright and Related Rights, from which the Beijing and Marrakesh treaties came, and where a broadcasting organisations treaty has been under negotiation since 1998 without result.

The Advisory Committee on Enforcement, which is deliberately not a norm setting body, because enforcement standards belong to TRIPS.

The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, established in 2000, which produced the GRATK Treaty in 2024 and is still negotiating on traditional knowledge and traditional cultural expressions.

The Committee on Development and Intellectual Property, established to implement the Development Agenda.

The Arbitration and Mediation Center

Established in 1994, it offers mediation, arbitration, expedited arbitration and expert determination for commercial disputes involving intellectual property.

Its best known work is domain names. WIPO proposed and the Internet Corporation for Assigned Names and Numbers adopted the Uniform Domain Name Dispute Resolution Policy in 1999, under which a complainant must show that the domain name is identical or confusingly similar to a mark in which it has rights, that the registrant has no rights or legitimate interests, and that the name was registered and is being used in bad faith.

In one line

WIPO became a specialised agency of the United Nations in 1974, agreed to cooperate with the World Trade Organization in 1995, and committed itself to a development mandate in 2007.

In exam wording: the World Intellectual Property Organization entered into an agreement with the United Nations which took effect on 17 December 1974, by which it became a specialised agency responsible for taking appropriate action to promote creative intellectual activity and to facilitate the transfer of technology related to industrial property to developing countries; it concluded an agreement with the World Trade Organization on 22 December 1995 in force from 1 January 1996; and its General Assembly adopted the Development Agenda in 2007.

Why WIPO wanted the relationship

Because BIRPI was outside the United Nations system altogether, and by the 1960s that was a problem.

Institutional competition. UNESCO administered the Universal Copyright Convention of 1952 and was making a claim to the copyright field. Without a place in the system, WIPO risked being absorbed or bypassed.

Membership. Newly independent States joined the United Nations first, and an organisation inside the system was easier for them to join and to trust.

Resources and legitimacy. Access to the development machinery of the United Nations, and the standing that comes with a formal relationship.

The agreement of 1974

Article 1 of the agreement recognises WIPO as a specialised agency responsible for taking appropriate action in accordance with its basic instrument and the treaties and agreements administered by it, inter alia for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs.

That last clause matters. WIPO's mandate is subject to the competence of the United Nations bodies, in particular the United Nations Conference on Trade and Development, the United Nations Development Programme and the United Nations Industrial Development Organization.

The agreement also provides for reciprocal representation, for the exchange of information and documents, for cooperation on personnel and statistics, and for WIPO's reports to the Economic and Social Council.

What it did not do. It did not give WIPO any power it lacked, and it did not subordinate WIPO's assemblies to any United Nations organ.

The agreement with the World Trade Organization, 1995

Concluded on 22 December 1995 and in force from 1 January 1996. It has three substantive articles.

Article 2 concerns laws and regulations. WIPO agrees to make available to WTO members and their nationals the collection of laws and regulations held in its library, on the same terms as to WIPO members, and to accept and make available notifications under TRIPS Article 63.2.

In one line

WIPO administers twenty eight treaties, and they fall into three families: those that set standards of protection, those that run a single international filing or registration, and those that classify.

In exam wording: the World Intellectual Property Organization administers twenty eight treaties including the Convention establishing it, which are conventionally grouped into intellectual property protection treaties, global protection system treaties, and classification treaties, to which must be added for the purposes of this paper the UPOV Convention administered by UPOV, the Convention on Biological Diversity with its Nagoya Protocol, and the TRIPS Agreement administered by the World Trade Organization.

Family one: intellectual property protection

These define internationally agreed basic standards of protection in each country. Seventeen of them.

Paris Convention 1883, industrial property. Worked in seven chapters of this book.

Berne Convention 1886, literary and artistic works. Worked in seven chapters.

Madrid Agreement (Indications of Source) 1891, the repression of false or deceptive indications of source on goods.

Rome Convention 1961, performers, producers of phonograms and broadcasting organisations. Administered jointly with the International Labour Organization and UNESCO.

Phonograms Convention 1971, against unauthorised duplication of phonograms.

Brussels Convention 1974, programme carrying signals transmitted by satellite.

Nairobi Treaty 1981, the Olympic symbol.

Washington Treaty 1989, intellectual property in respect of integrated circuits. Never entered into force.

Trademark Law Treaty 1994, procedural harmonisation for marks.

WIPO Copyright Treaty 1996, the first internet treaty.

WIPO Performances and Phonograms Treaty 1996, the second.

Patent Law Treaty 2000, procedural harmonisation for patents.

Singapore Treaty on the Law of Trademarks 2006, the successor to the Trademark Law Treaty.

Beijing Treaty on Audiovisual Performances 2012.

Marrakesh VIP Treaty 2013, access to published works for persons who are print disabled.

WIPO GRATK Treaty 2024, intellectual property, genetic resources and associated traditional knowledge.

Riyadh Design Law Treaty 2024.

Family two: the global protection system

These ensure that one international registration or filing has effect in the relevant signatory States. Six of them, counting the Madrid Agreement and Protocol separately.

Madrid Agreement (Marks) 1891 and the Madrid Protocol 1989, international registration of marks.

Hague Agreement 1925, international registration of industrial designs, now the Geneva Act of 1999.

Lisbon Agreement 1958, appellations of origin, now with the Geneva Act of 2015 covering geographical indications.

Patent Cooperation Treaty 1970, the international patent application.

Budapest Treaty 1977, the international recognition of the deposit of microorganisms.

Family three: classification

These create systems that organise information into indexed, manageable structures. Four of them.

Nice Agreement 1957, goods and services for marks.

Locarno Agreement 1968, industrial designs.

Strasbourg Agreement 1971, the International Patent Classification.

In one line

The Rome Convention protects the people who bring works to the public, the performer, the record producer and the broadcaster, and India is not a party to it.

In exam wording: the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, concluded at Rome on 26 October 1961 and in force from 18 May 1964, is administered jointly by WIPO, the International Labour Organization and UNESCO, and confers on performers the possibility of preventing certain acts, on producers of phonograms the right to authorise or prohibit direct or indirect reproduction, and on broadcasting organisations the rights set out in Article 13.

Why the law has this at all

Berne protects authors and says nothing about anybody else. The composer of a song is an author. The singer who records it is not. The company that pays for the recording is not. The station that broadcasts it is not.

Each of them invests and each of them can be copied. By the 1930s recording and broadcasting had made that a commercial problem, and the International Labour Organization took an interest because performers are workers.

So Rome protects "neighbouring rights", also called related rights, and the phrase means rights neighbouring on copyright and not part of it.

Article 1 makes the relationship explicit: protection granted under this Convention shall leave intact and shall in no way affect the protection of copyright in literary and artistic works, and consequently no provision may be interpreted as prejudicing such protection.

Definitions, Article 3

Performers means actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works.

Phonogram means any exclusively aural fixation of sounds of a performance or of other sounds.

Producer of phonograms means the person who, or the legal entity which, first fixes the sounds of a performance or other sounds.

Publication means the offering of copies of a phonogram to the public in reasonable quantity.

Reproduction means the making of a copy or copies of a fixation.

Broadcasting means the transmission by wireless means for public reception of sounds or of images and sounds.

Rebroadcasting means the simultaneous broadcasting by one broadcasting organisation of the broadcast of another.

National treatment, Articles 2, 4, 5 and 6

Article 2 defines national treatment as the treatment accorded by the domestic law of the Contracting State in which protection is claimed to performers who are its nationals, to producers of phonograms who are its nationals and to broadcasts of organisations having their headquarters on its territory.

Article 4 fixes the points of attachment for performers: the performance takes place in another Contracting State; or it is incorporated in a phonogram protected under Article 5; or it is carried by a broadcast protected under Article 6.

In one line

The Rome Convention is the only intellectual property treaty in the world run by three international organisations at once, and its Article 32 is what sets that up.

In exam wording: Articles 23 to 34 of the Rome Convention govern signature and deposit, the manner of becoming party, entry into force, implementation, territories, denunciation, revision, the settlement of disputes, limits on reservations, the Intergovernmental Committee, languages and notifications, the Convention being deposited with the Secretary-General of the United Nations and administered jointly by the Director General of WIPO, the Director-General of the International Labour Office and the Director-General of UNESCO.

Articles 23 to 25: joining

Article 23: the Convention shall be deposited with the Secretary-General of the United Nations and shall be open until 30 June 1962 for signature by any State invited to the Diplomatic Conference on the International Protection of Performers, Producers of Phonograms and Broadcasting Organisations, which is a member of the United Nations, or a member of any of the specialised agencies, or a party to the Statute of the International Court of Justice, or is invited by the General Assembly of the United Nations.

Article 24(1): the Convention is subject to ratification or acceptance by signatory States.

Article 24(2) is the eligibility condition and it is examinable: the Convention shall be open for accession by any State invited to the Conference, by any member State of the United Nations, or by any State member of any of the specialised agencies, provided that in either case such State is a party to the Universal Copyright Convention or is a member of the International Union for the Protection of Literary and Artistic Works.

So a State must already protect authors before it may protect neighbouring rights. That is why the Rome membership is much smaller than Berne's.

Article 25: the Convention enters into force three months after the deposit of the sixth instrument, and thereafter for each State three months after the deposit of its own instrument. It came into force on 18 May 1964.

Articles 26 to 28: implementation, territories and denunciation

Article 26(1): each Contracting State undertakes to adopt, in accordance with its Constitution, the measures necessary to ensure the application of this Convention.

Article 26(2): at the time of deposit, each State must be in a position under its domestic law to give effect to the terms of the Convention.

Article 27: any State may declare that the Convention extends to all or any of the territories for whose international relations it is responsible.

Article 28: denunciation, by notification addressed to the Secretary-General, taking effect twelve months after receipt, and not exercisable before the expiry of a period of five years from the date on which the Convention came into force for that State. Denunciation of the Universal Copyright Convention or of the Berne Union automatically brings the Rome denunciation with it.

In one line

One convention answers record piracy by obliging States to stop the duplication of phonograms, and the other answers signal theft by obliging them to stop the distribution of satellite signals to people they were not meant for.

In exam wording: the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, concluded at Geneva on 29 October 1971, obliges each Contracting State to protect producers of phonograms who are nationals of other Contracting States against the making of duplicates without their consent and against the importation and distribution of such duplicates; and the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, concluded at Brussels on 21 May 1974, obliges each Contracting State to prevent the distribution on or from its territory of any programme carrying signal by a distributor for whom the signal was not intended.

The Phonograms Convention 1971

Why it was made. The Rome Convention of 1961 protected producers of phonograms, but its membership grew slowly and its Article 24(2) condition kept many States out. Meanwhile the cassette made record piracy cheap, and piracy on an industrial scale appeared in the 1960s.

So a short convention was made for the single problem, open to a wider membership, with no requirement of Berne or Universal Copyright Convention membership.

Article 1 defines phonogram, producer of phonograms, duplicate, and distribution to the public, in terms very close to Rome Article 3.

Article 2 is the obligation: each Contracting State shall protect producers of phonograms who are nationals of other Contracting States against the making of duplicates without the consent of the producer, and against the importation of such duplicates, provided that any such making or importation is for the purpose of distribution to the public, and against the distribution of such duplicates to the public.

Article 3 leaves the means to each State: protection may be by copyright, by a sui generis right, by the law of unfair competition, or by penal sanctions. That flexibility is the Convention's most distinctive feature, and it is why it was easier to join than Rome.

Article 4: the duration is a matter for domestic law, but if it fixes a specific duration it shall be not less than twenty years from the end of the year in which the sounds were first fixed or the phonogram first published.

Article 5 is the formalities provision, in the same terms as Rome Article 11: the P in a circle notice with the year of first publication satisfies any formality requirement.

Article 6 permits the same limitations as a State provides for authors, and permits compulsory licences only where reproduction is solely for teaching or scientific research, is limited to the territory, does not include export, and carries equitable remuneration.

In one line

The WIPO Copyright Treaty updates Berne for the digital age by confirming that computer programs and databases are protected, adding rights of distribution, rental and communication to the public, and requiring States to outlaw the circumvention of technological protection.

In exam wording: the WIPO Copyright Treaty, adopted at Geneva on 20 December 1996 and in force from 6 March 2002, is a special agreement within the meaning of Article 20 of the Berne Convention, requiring contracting parties to comply with Articles 1 to 21 of that Convention and the Appendix, and adding protection for computer programs and compilations of data, rights of distribution, rental and communication to the public including making available, and obligations concerning technological measures and rights management information.

Why it was made

Because Berne could not be revised. Article 27(3) of Berne requires unanimity, so nothing could be added to it.

Because digital transmission raised three questions the existing text did not answer. Is a transmission over a network a reproduction, a distribution, a communication to the public, or none of them? Is a computer program a literary work? Is a database a protected collection?

And because technological protection needed legal backing. A lock on a file is useless if breaking it is lawful.

The negotiation also failed on one point, and that is examinable: a proposed provision on the reproduction right in the digital environment was not adopted, and an Agreed Statement concerning Article 1(4) was adopted instead, saying that the reproduction right in Berne Article 9 fully applies in the digital environment, in particular to the use of works in digital form, and that the storage of a protected work in digital form in an electronic medium constitutes a reproduction.

Articles 1 to 5: the framework and the subject matter

Article 1(1): this Treaty is a special agreement within the meaning of Article 20 of the Berne Convention, as regards contracting parties that are countries of the Berne Union, and it has no connection with treaties other than Berne and shall not prejudice any rights and obligations under any other treaty.

Article 1(2): nothing derogates from existing obligations under Berne.

Article 1(4): contracting parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention. So a State that joins this Treaty accepts the substance of Berne even if it is not a Berne member.

Article 2: copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. This is the same rule as TRIPS Article 9.2.

Article 3 applies Berne Articles 2 to 6 mutatis mutandis to the protection provided under the Treaty.

In one line

The Treaty has its own Assembly, is open to States and to certain intergovernmental organisations, needed thirty ratifications to come into force, and permits no reservations.

In exam wording: Articles 15 to 25 of the WIPO Copyright Treaty establish an Assembly of the contracting parties and provide that the International Bureau of WIPO shall perform the administrative tasks, and govern eligibility for becoming party, the rights and obligations under the Treaty, signature, entry into force upon deposit of thirty instruments, the effective date of becoming party, the prohibition of reservations, denunciation, languages and the depositary.

Article 15: the Assembly

Article 15(1)(a): the contracting parties shall have an Assembly.

Article 15(1)(b): each contracting party shall be represented by one delegate who may be assisted by alternate delegates, advisors and experts.

Article 15(1)(c): the expenses of each delegation shall be borne by the contracting party that appointed it; the Assembly may ask WIPO to grant financial assistance to facilitate the participation of delegations of contracting parties that are regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations or that are countries in transition to a market economy.

Article 15(2)(a) sets the functions: the Assembly shall deal with matters concerning the maintenance and development of the Treaty and the application and operation of it; it shall perform the function allocated to it under Article 17(2) concerning admission of certain intergovernmental organisations; and it shall decide the convocation of any diplomatic conference for revision and give the necessary instructions to the Director General for the preparation of such a conference.

Article 15(3)(a): each contracting party that is a State has one vote and votes only in its own name.

Article 15(3)(b) is the regional organisation rule: any contracting party that is an intergovernmental organisation may participate in the vote, in place of its member States, with a number of votes equal to the number of its member States that are party to the Treaty, and no such organisation shall participate in the vote if any one of its member States exercises its right to vote and vice versa.

Article 15(4): the Assembly shall meet in ordinary session once every two years upon convocation by the Director General.

Article 15(5): the Assembly shall establish its own rules of procedure, including the convocation of extraordinary sessions, the requirements of a quorum, and the required majorities, subject to the Treaty's own provisions.

Article 16: the International Bureau

Article 16: the International Bureau of WIPO shall perform the administrative tasks concerning the Treaty.

One line, and it is what makes this a WIPO treaty rather than one deposited with the United Nations, as Rome, Phonograms and Brussels are.

In one line

The WPPT gives performers what the Rome Convention withheld, a moral right and exclusive economic rights, and gives producers of phonograms the on demand right.

In exam wording: the WIPO Performances and Phonograms Treaty, adopted at Geneva on 20 December 1996 and in force from 20 May 2002, confers on performers moral rights and exclusive rights of reproduction, distribution, rental and making available in respect of performances fixed in phonograms, together with the right to authorise the broadcasting and communication to the public and the fixation of unfixed performances, and confers on producers of phonograms exclusive rights of reproduction, distribution, rental and making available, with a right to a single equitable remuneration for broadcasting and communication to the public under Article 15.

Articles 1 to 4: the framework

Article 1(1): nothing derogates from existing obligations that contracting parties have to each other under the Rome Convention.

Article 1(2): protection under this Treaty shall leave intact and shall in no way affect the protection of copyright in literary and artistic works, and consequently no provision may be interpreted as prejudicing such protection. The same rule as Rome Article 1.

Article 1(3): the Treaty shall not have any connection with, nor shall it prejudice any rights and obligations under, any other treaty.

Article 2 defines the terms. Performers means actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore.

That reference to expressions of folklore is new and it matters for Module IV, because Rome did not have it and it is the first time an international copyright instrument recognised a performer of folklore.

Phonogram means the fixation of the sounds of a performance or of other sounds, or of a representation of sounds, other than in the form of a fixation incorporated in a cinematographic or other audiovisual work.

Fixation means the embodiment of sounds, or of the representations thereof, from which they can be perceived, reproduced or communicated through a device.

Producer of a phonogram means the person, or the legal entity, who or which takes the initiative and has the responsibility for the first fixation of the sounds.

Publication, broadcasting and communication to the public are also defined, broadcasting including transmission by satellite and encrypted signals where the means for decrypting are provided by or with the consent of the broadcasting organisation.

Article 3 identifies the beneficiaries: nationals of other contracting parties, applying the criteria of eligibility under the Rome Convention as if all contracting parties to this Treaty were Contracting States of Rome.

Article 4, national treatment: each contracting party shall accord to nationals of other contracting parties the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in this Treaty and to the right to equitable remuneration in Article 15. Article 4(2) limits the obligation where a party has made a reservation under Article 15(3).

In one line

The second half of the WPPT mirrors the WIPO Copyright Treaty exactly: locks, metadata, no formalities, no reservations except the remuneration opt out, and an Assembly of its own.

In exam wording: Articles 18 to 33 of the WIPO Performances and Phonograms Treaty impose obligations concerning technological measures and rights management information, prohibit formalities, restrict reservations, govern application in time and enforcement, and establish the Assembly, the role of the International Bureau, eligibility, entry into force, denunciation, languages and the depositary.

Articles 18 and 19: locks and metadata

Article 18, technological measures. Contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by performers or producers of phonograms in connection with the exercise of their rights under this Treaty and that restrict acts, in respect of their performances or phonograms, which are not authorised by the performers or the producers concerned or permitted by law.

Article 19, rights management information. Contracting parties shall provide adequate and effective legal remedies against any person knowingly performing, or with respect to civil remedies having reasonable grounds to know, that it will induce, enable, facilitate or conceal an infringement, who removes or alters any electronic rights management information without authority, or who distributes, imports for distribution, broadcasts, communicates or makes available to the public, without authority, performances, copies of fixed performances or phonograms knowing that electronic rights management information has been removed or altered without authority.

Article 19(2) defines rights management information as information which identifies the performer, the performance, the producer of the phonogram, the phonogram, the owner of any right, or information about the terms and conditions of use, and any numbers or codes that represent such information, when any of these items is attached to a copy of a fixed performance or a phonogram or appears in connection with its communication or making available.

These are the twins of WIPO Copyright Treaty Articles 11 and 12, and India implemented all four by sections 65A and 65B of the Copyright Act in 2012.

Articles 20 to 23

Article 20, formalities: the enjoyment and exercise of the rights provided for in this Treaty shall not be subject to any formality.

The same rule as Berne Article 5(2), extended to neighbouring rights, and it means no registration, deposit or notice may be required.

Article 21, reservations: subject to the provisions of Article 15(3), no reservations to this Treaty shall be permitted. So the only reservation is the equitable remuneration opt out.

Article 22, application in time. Contracting parties shall apply the provisions of Berne Article 18, mutatis mutandis, to the rights of performers and producers of phonograms provided for in this Treaty. Article 22(2) permits a party to limit the application of Article 5 on moral rights to performances which occurred after the entry into force of the Treaty for that party.

In one line

The Beijing Treaty gives an audiovisual performer the rights that Rome took away and the WPPT never gave, and it took the international system fifty one years to get there.

In exam wording: the Beijing Treaty on Audiovisual Performances, adopted at Beijing on 24 June 2012 and in force from 28 April 2020, confers on performers in respect of their performances fixed in audiovisual fixations moral rights and exclusive rights of reproduction, distribution, rental, making available, and broadcasting and communication to the public, and addresses the transfer of rights to the producer of the audiovisual fixation in Article 12.

Why it took fifty one years

Rome Article 19 is the beginning of the story. Notwithstanding anything in that Convention, once a performer has consented to the incorporation of his performance in a visual or audiovisual fixation, Article 7 shall have no further application. So a film actor who agreed to be filmed lost the Convention's protection entirely.

The WPPT of 1996 did not fix it. Article 2(b) of that Treaty defines a phonogram to exclude a fixation incorporated in a cinematographic or other audiovisual work, so an actor was outside it too.

A diplomatic conference in 2000 failed. Nineteen of twenty articles were agreed provisionally and the conference broke down on one question: the transfer of rights from the performer to the producer.

The disagreement was between two legal traditions. The United States and others wanted a presumption or a rule of transfer, so that a producer financing a film would hold all the rights without needing separate assignments from every performer. Others, particularly in Europe and in developing countries, resisted anything that reduced the performer's position by treaty.

The Beijing solution was to leave it to national law, which is Article 12, and that compromise is what made the Treaty possible in 2012.

Articles 1 to 4: framework, definitions and beneficiaries

Article 1(1): nothing derogates from existing obligations under the WPPT or the Rome Convention.

Article 1(3): this Treaty shall not have any connection with, nor prejudice any rights and obligations under, any other treaty.

An Agreed Statement to Article 1 records that nothing prevents a contracting party from applying the provisions of the Treaty to performances fixed in phonograms as well.

Article 2 defines performers in terms that include performers of expressions of folklore, as the WPPT does; audiovisual fixation as the embodiment of moving images, whether or not accompanied by sounds, from which they can be perceived, reproduced or communicated through a device; broadcasting, including satellite and encrypted transmissions where the decrypting means are provided by or with the consent of the broadcasting organisation; and communication to the public.

In one line

The Beijing Treaty's second half follows the 1996 model exactly, with one addition: it permits notifications rather than reservations, and it needed thirty ratifications, which took eight years.

In exam wording: Articles 18 to 30 of the Beijing Treaty govern reservations and notifications, application in time, enforcement, the Assembly, the role of the International Bureau, eligibility, rights and obligations, signature, entry into force upon deposit of thirty instruments, effective dates, denunciation, languages and the depositary.

Article 18: reservations and notifications

Article 18(1): subject to the provisions of Article 11(3), no reservations to this Treaty shall be permitted.

Article 18(2): any notification under Article 11(2) or 11(3) may be made upon ratification or accession, and the effective date shall be three months after the date of entry into force of the Treaty for that party, or at any time thereafter, in which case it takes effect three months after receipt by the Director General.

The distinction between a reservation and a notification is worth stating. A reservation modifies the treaty obligation for the reserving party; a notification here exercises an option the Treaty itself gives. Article 11 offers three positions and a party chooses one, which is not a derogation.

Article 19: application in time

Article 19(1): contracting parties shall accord the protection granted under this Treaty to fixed performances that exist at the moment of entry into force, and to all performances that occur after that moment.

Article 19(2): notwithstanding paragraph 1, a contracting party may provide in a declaration that it will not apply Articles 7 to 11 to fixed performances that existed at the moment of entry into force for that party; and any other party may limit the application of those Articles, in respect of the first party's fixed performances, to performances that occurred after entry into force for the first party.

Article 19(3): the protection provided for in Article 5 and in Article 19(1) and (2) shall not apply to performances that occurred before entry into force for that party.

Article 19(4): contracting parties may apply Berne Article 18 mutatis mutandis.

That is a more elaborate scheme than the WPPT's, and the reason is that an audiovisual archive is very large and very old, so States wanted the option not to revive rights in existing films.

Article 20: enforcement

Article 20(1): contracting parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of the Treaty.

Article 20(2): contracting parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.

In one line

The Marrakesh Treaty requires every party to create an exception to copyright so that books can be made accessible to blind and print disabled people, and it lets those accessible copies cross borders.

In exam wording: the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, adopted at Marrakesh on 27 June 2013 and in force from 30 September 2016, obliges contracting parties to provide in their national law a limitation or exception permitting the making and supply of accessible format copies to beneficiary persons, and to permit the cross border exchange and importation of such copies by authorised entities.

Why it is different from every other treaty in this module

Every other WIPO instrument creates or strengthens a right. This one requires a limitation.

That is not a small point of drafting. It reverses the direction of international intellectual property law, and it is the strongest evidence that the Development Agenda of 2007 changed something.

The problem it answers is called the book famine. Of the books published each year, only a small proportion were ever made available in accessible formats such as braille, large print, audio or accessible digital text; and an accessible copy made lawfully in one country could not lawfully be sent to another, because the exception under which it was made had no effect abroad.

So the same book was converted separately in every country, at enormous duplicated cost, and in most countries not at all.

India was ahead of the treaty. The Copyright (Amendment) Act 2012 inserted section 52(1)(zb), permitting the adaptation, reproduction, issue of copies or communication to the public of any work in an accessible format for the benefit of persons with disability, and section 31B, a compulsory licence to publish a work in an accessible format. Both preceded the Treaty by a year.

And India ratified first in the world, on 30 June 2014.

Articles 1 and 2: framework and definitions

Article 1: nothing in this Treaty shall derogate from any obligations that contracting parties have to each other under any other treaties, nor shall it prejudice any rights that a contracting party has under any other treaties.

Article 2(a) defines works as literary and artistic works within the meaning of Berne Article 2(1), in the form of text, notation and related illustrations, whether published or otherwise made publicly available in any media.

An Agreed Statement adds that this includes such works in audio form, such as audiobooks.

Article 2(b) defines an accessible format copy as a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including permitting access as feasibly and comfortably as a person without visual impairment or other print disability. The accessible format copy is used exclusively by beneficiary persons and it must respect the integrity of the original work, taking due consideration of the changes needed to make the work accessible and of the accessibility needs of the beneficiary persons.

In one line

The Marrakesh Treaty uses the standard 1996 machinery but needed only twenty ratifications, and it reached them in three years.

In exam wording: Articles 13 to 22 of the Marrakesh VIP Treaty establish the Assembly of the contracting parties and the role of the International Bureau of WIPO, and govern eligibility for becoming party, rights and obligations, signature, entry into force upon deposit of twenty instruments, effective dates, denunciation, languages and the depositary.

Article 13: the Assembly

The frame is the standard WIPO Assembly clause, and the chapter on the administration of the WIPO Copyright Treaty sets it out in full. Rather than repeat it, this chapter states what Marrakesh does with it and where it departs.

The four features it shares with the 1996 model. An Assembly of the contracting parties, each represented by one delegate assisted by alternates, advisors and experts, at its own expense. A competence over the maintenance, development, application and operation of the Treaty. One vote for each contracting party that is a State, with an intergovernmental organisation voting instead of its member States and never alongside them. And meetings convoked by the Director General, in the absence of exceptional circumstances during the same period and at the same place as the General Assembly of WIPO.

Three features are new or sharpened.

Financial assistance, Article 13(1)(c). The Assembly may ask WIPO to grant financial assistance to facilitate the participation of delegations of contracting parties regarded as developing countries in conformity with the established practice of the General Assembly of the United Nations, or countries in transition to a market economy. That is a beneficiary provision inside an administrative article, and it fits a treaty whose beneficiaries are in those countries.

Consensus, Article 13(5). The Assembly shall endeavour to take its decisions by consensus and shall establish its own rules of procedure, including the convocation of extraordinary sessions, quorum requirements and, subject to the Treaty, the majorities required for various kinds of decision.

The consensus sentence is not in the 1996 treaties, and it records a change of practice in WIPO bodies over the intervening seventeen years.

Admission of organisations, Article 13(2)(b). The Assembly performs the function allocated to it by Article 15(2), which is the admission of certain intergovernmental organisations, so the membership decision is taken by the Assembly rather than by the depositary.

Article 13(2)(c) gives the Assembly the power to decide the convocation of a diplomatic conference for revision and to instruct the Director General on its preparation.

Article 14: the International Bureau

Article 14: the International Bureau of WIPO performs the administrative tasks concerning the Treaty. One sentence, and it is the same sentence the other modern WIPO treaties use.

In one line

The Patent Cooperation Treaty does not grant a patent: it lets an inventor file once, in one language, at one office, and be treated as having filed in every country designated, while deciding for another eighteen months which of them are worth the money.

In exam wording: the Patent Cooperation Treaty, concluded at Washington on 19 June 1970 and as amended on 3 October 2001, establishes a Union for cooperation in the filing, searching and examination of applications for the protection of inventions, an international application filed under it having, from the international filing date, the effect of a regular national application in each designated State, all substantive decisions on patentability remaining with the national offices.

Articles 1 and 2: the Union and the vocabulary

Article 1(1): the States party to this Treaty constitute a Union for cooperation in the filing, searching, and examination of applications for the protection of inventions, and for rendering special technical services. The Union is called the International Patent Cooperation Union.

Article 1(2) is the safeguard: no provision of this Treaty shall be interpreted as diminishing the rights under the Paris Convention of any national of, or resident in, a country party to that Convention.

Article 2 defines the terms. An application means an application for the protection of an invention. International application means an application filed under this Treaty. National application means an application filed with a national Office. Designated State means a State designated in an international application. Receiving Office means the national Office or the intergovernmental organisation with which the international application has been filed. Elected State means a State elected for the purposes of international preliminary examination.

Articles 3 to 8: what an international application is

Article 3(1): applications for the protection of inventions in any of the contracting States may be filed as international applications under this Treaty.

Article 3(2): an international application shall contain, as specified in this Treaty and the Regulations, a request, a description, one or more claims, one or more drawings where required, and an abstract.

Article 3(4) requires the application to be in a prescribed language, to comply with the prescribed physical requirements, to comply with the prescribed requirement of unity of invention, and to be subject to the payment of the prescribed fees.

Article 4, the request. It shall contain a petition that the international application be processed according to this Treaty, the designation of the contracting State or States in which protection is sought, the name of and other prescribed data concerning the applicant and the agent if any, the title of the invention, and the name of and other prescribed data concerning the inventor where national law so requires.

In one line

Every international application is searched by a major patent office, the applicant gets a report and an opinion on patentability that binds nobody, and the application is published at eighteen months from priority.

In exam wording: Articles 15 to 21 of the Patent Cooperation Treaty provide for the international search of every international application by an International Searching Authority, for the international search report and the written opinion, for the applicant's right to amend the claims once before the International Bureau, for communication to designated Offices, and for international publication promptly after the expiration of eighteen months from the priority date.

Article 15: the search

Article 15(1): each international application shall be the subject of international search.

Article 15(2): the objective of the international search is to discover relevant prior art.

Article 15(3): international search shall be made on the basis of the claims, with due regard to the description and the drawings.

Article 15(4): the International Searching Authority shall endeavour to discover as much of the relevant prior art as its facilities permit, and shall in any case consult the documentation specified in the Regulations.

Article 15(5) is the international type search, a service by which the national Office of a contracting State may, on request, carry out a search of a national application, and a contracting State may permit or require it.

Articles 16 and 17: the Authority and its procedure

Article 16(1): international search shall be carried out by an International Searching Authority, which may be either a national Office or an intergovernmental organisation, such as the International Patent Institute, whose tasks include the establishing of documentary search reports on prior art with respect to inventions which are the subject of applications.

Article 16(3): the Assembly appoints Authorities, and the appointment is conditional on the Authority concluding an agreement with the International Bureau, subject to approval by the Assembly, setting out the rights and obligations, in particular the formal undertaking to apply and observe all the common rules of international search.

The Indian Patent Office was appointed an International Searching Authority and an International Preliminary Examining Authority with effect from 2013, which is a fact worth knowing, and it means an Indian applicant may have its search done in India.

Article 17(1): the procedure before the International Searching Authority is governed by this Treaty, the Regulations, and the agreement.

Article 17(2)(a) is the declaration of no search. If the Authority considers that the international application relates to subject matter which it is not required to search under the Regulations and decides not to search, or that the description, the claims or the drawings fail to comply with the prescribed requirements to such an extent that a meaningful search could not be carried out, it shall so declare and shall notify the applicant and the International Bureau that no international search report will be established.

In one line

At thirty months from priority the applicant hands the application to each national office it has chosen, pays the fees, files the translations, and from that moment the Treaty stops mattering and national law takes over.

In exam wording: Articles 22 to 30 of the Patent Cooperation Treaty govern the entry into the national phase before designated Offices, the effects of international publication and the confidential nature of the application, and Articles 31 to 42 govern Chapter II international preliminary examination, the international preliminary report on patentability, and the procedure before elected Offices.

Articles 22 to 24: entering the national phase

Article 22(1): the applicant shall furnish to each designated Office a copy of the international application, unless already communicated, and a translation where required, and shall pay the national fee, if any, not later than at the expiration of thirty months from the priority date.

Thirty months is the number to remember. It was twenty months until 2002 for States that had not accepted the Chapter II timetable, and the amendment of 3 October 2001 made thirty the general rule.

Article 22(3): any national law may fix time limits which expire later than the Treaty's, and several do.

Article 23(1): no designated Office shall process or examine the international application prior to the expiration of the applicable time limit.

Article 23(2): notwithstanding that, any designated Office may, on the express request of the applicant, process or examine at any time.

Article 24(1) sets out when effect is lost in a designated State: if the applicant withdraws the international application or the designation of that State; if the international application is considered withdrawn by reason of Articles 12(3), 14(1)(b), 14(3)(a) or 14(4); or if the applicant fails to perform the acts referred to in Article 22 within the applicable time limit.

Article 24(2): notwithstanding that, any designated Office may maintain the effect of the international application even where it is not required to do so.

That saving in Article 24(2) is the basis of the restoration provisions that most offices now operate for a missed national phase deadline.

Articles 25 to 30: review, national requirements and confidentiality

Article 25, review by designated Offices. Where the receiving Office has refused to accord an international filing date or has declared the application withdrawn, or the International Bureau has made a finding under Article 12(3), the International Bureau shall send copies of the file to any designated Office on request, and if the applicant so requests the Office shall decide whether the refusal, declaration or finding was justified under the Treaty. If it was not, the Office shall treat the application as if the error had not occurred.

In one line

The last third of the Patent Cooperation Treaty deals with utility models and inventors' certificates, with time limits and excuses for missing them, with technical assistance for developing countries, and with the machinery of the Union.

In exam wording: Articles 43 to 52 of the Patent Cooperation Treaty contain common provisions concerning the kind of protection sought, regional patent treaties, translations, time limits, the right to practise, patent information services and technical assistance, and Articles 53 to 69 establish the Assembly, the Executive Committee, the International Bureau, the Committee for Technical Cooperation, the finances, the Regulations, and the provisions on disputes, revision, amendment, accession, entry into force, reservations, gradual application, denunciation, signature, languages, depositary functions and notifications.

Articles 43 to 46: what protection is sought

Article 43, seeking certain kinds of protection. In respect of any designated or elected State whose law provides for the grant of inventors' certificates, utility certificates, utility models, patents or certificates of addition, inventors' certificates of addition, or utility certificates of addition, the applicant may indicate that the international application is for the grant of one of those rather than a patent, and the ensuing effects shall be governed by the applicant's choice.

Article 44, seeking two kinds of protection. In respect of any designated or elected State whose law permits an application to be for the grant of a patent or one of the other kinds of protection and also for one of the others, the applicant may indicate the two kinds sought.

Article 45, regional patent treaties. Any treaty providing for the grant of regional patents, and giving all persons entitled under Article 9 the right to file applications for such patents, may provide that international applications designating or electing a State party to both that treaty and this Treaty may be filed as applications for such regional patents. Article 45(2) permits the national law of such a designated or elected State to provide that any designation or election of that State in the international application shall have the effect of an indication of the wish to obtain a regional patent.

That is how the European Patent Office fits into the system, and an applicant who designates the European Patent Office in an international application obtains a European regional application.

Article 46, incorrect translation. If, because of an incorrect translation, the scope of any patent granted on an international application exceeds the scope of the international application in its original language, the competent authorities of the contracting State concerned may accordingly and retroactively limit the scope of the patent, and declare it null and void to the extent that its scope has exceeded the scope of the original.

In one line

You cannot describe a bacterium in words well enough for somebody else to make it, so the Budapest Treaty lets an inventor deposit a sample once, with one recognised institution, and have that deposit recognised by every contracting State.

In exam wording: the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, done at Budapest on 28 April 1977 and amended on 26 September 1980, establishes a Union whose contracting States are bound to recognise, for the purposes of patent procedure, the deposit of a microorganism with any International Depositary Authority, irrespective of whether that Authority is on or outside their territory.

Why the law has this at all

Because the patent bargain is disclosure, and section 10(4) of the Indian Patents Act, like every other patent law, requires the specification to describe the invention sufficiently for a person skilled in the art to perform it.

A microorganism cannot be described that way. A written description of a novel strain will not enable a skilled reader to obtain that strain, because a strain is not a recipe.

So the answer is to deposit a sample. The specification then says where the sample is, and the person skilled in the art can obtain it.

But before 1977 that meant depositing in every country separately, at very great cost and with the risk that a strain would die in one collection and not another.

Article 3 is the whole Treaty in one sentence: one deposit, recognised everywhere.

Articles 1 to 5: the obligation

Article 1: the States party to this Treaty constitute a Union for the international recognition of the deposit of microorganisms for the purposes of patent procedure.

Article 2 defines the terms. A patent includes inventors' certificates, utility certificates, utility models, patents of addition and the like. Patent procedure means any administrative or judicial procedure relating to a patent application or a patent. Publication for the purposes of patent procedure means the official publication or the official laying open for public inspection of a patent application or a patent. International depositary authority means a depositary institution which has acquired the status provided for in Article 7. Depositor and Union are also defined.

Article 3(1)(a) is the core obligation: contracting States which allow or require the deposit of microorganisms for the purposes of patent procedure shall recognise, for such purposes, the deposit of a microorganism with any international depositary authority, and such recognition shall include the recognition of the fact and date of the deposit as indicated by the international depositary authority as well as the recognition of the fact that what is furnished as a sample is a sample of the deposited microorganism.

In one line

The Madrid Agreement lets the owner of a mark registered at home file one application, in French, through its own office, and obtain protection in every country it designates, all of it depending for five years on the home registration surviving.

In exam wording: the Madrid Agreement Concerning the International Registration of Marks of 14 April 1891, as revised at Stockholm on 14 July 1967 and amended on 28 September 1979, establishes a Special Union under Article 19 of the Paris Convention whereby nationals of the contracting countries may secure protection for their marks in all the other contracting countries by filing an application through the Office of the country of origin for international registration by the International Bureau.

Articles 1 and 2: the Special Union and who may use it

Article 1(1): the countries to which this Agreement applies constitute a Special Union for the international registration of marks.

Article 1(2): nationals of any of the contracting countries may, in all the other countries party to this Agreement, secure protection for their marks applicable to goods or services, registered in the country of origin, by filing the said marks at the International Bureau, through the intermediary of the Office of the said country of origin.

Article 1(3) defines the country of origin. It is the country of the Special Union where the applicant has a real and effective industrial or commercial establishment; if he has no such establishment, the country where he has his domicile; and if he has no domicile within the Special Union, the country of his nationality if he is a national of a country of the Special Union.

The order is fixed and it is a cascade. Establishment, then domicile, then nationality.

Article 2 applies Article 3 of the Paris Convention: persons not nationals of a contracting country who satisfy the conditions of Paris Article 3 are treated as nationals.

Article 3: the application

Article 3(1): every application for international registration must be presented on the form prescribed by the Regulations; the Office of the country of origin shall certify that the particulars appearing in the application correspond to the particulars in the national register, and shall mention the dates and numbers of the filing and registration of the mark in the country of origin as well as the date of the application for international registration.

Article 3(2): the applicant must indicate the goods or services for which protection is claimed and, if possible, the corresponding class or classes according to the classification established by the Nice Agreement.

Article 3(4): the International Bureau shall register the marks immediately and shall notify the interested Offices without delay. The registered marks shall be published in a periodical journal issued by the International Bureau.

In one line

The Protocol keeps the Madrid machinery and removes every reason a country had for staying out of it: an application may be based on a home application, English is available, refusal may take eighteen months, individual fees may be charged, and a central attack no longer destroys everything.

In exam wording: the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, adopted at Madrid on 27 June 1989 and as amended on 12 November 2007, permits an international application to be based on a basic application as well as on a basic registration, opens membership to intergovernmental organisations, permits an extended period for refusal, permits individual fees, and permits transformation of an international registration into national applications where the basic mark ceases to have effect.

Articles 1 and 2: membership and the basis

Article 1: the States party to this Protocol, even where they are not party to the Madrid Agreement, and the organisations referred to in Article 14(1)(b) which are party to this Protocol, shall be members of the same Union of which countries party to the Madrid Agreement are members.

One Union, two treaties. That is the structure, and it is why the whole is called the Madrid System.

Article 2(1) is the fundamental change. Where an application for the registration of a mark has been filed with the Office of a Contracting Party, or where a mark has been registered in the register of the Office of a Contracting Party, the person in whose name that application or that registration stands may secure protection for the mark in the territory of the Contracting Parties by obtaining the registration of that mark in the register of the International Bureau.

Read the two limbs. A basic application or a basic registration will do. The Agreement required a registration.

Article 2(1)(i) and (ii) set the entitlement conditions: where the basic application was filed with, or the basic registration was made by, the Office of a Contracting State, the person must be a national of, or be domiciled in, or have a real and effective industrial or commercial establishment in, that State; and where the Office is that of a Contracting Organisation, the person must be a national of a State member of that Organisation, or be domiciled or have such an establishment in its territory.

Article 2(2): the application shall be filed with the International Bureau through the intermediary of the Office of origin.

Article 3: the international application

Article 3(1): every international application shall be presented on the prescribed form; the Office of origin shall certify that the particulars appearing in the international application correspond to the particulars appearing, at the time of certification, in the basic application or basic registration, and shall indicate the dates and numbers.

In one line

Goods carrying a false or deceptive indication of where they come from must be seized on importation, and this short agreement of 1891 is the beginning of the international law of geographical indications.

In exam wording: the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, of 14 April 1891, as last revised at Lisbon on 31 October 1958 and supplemented by the Additional Act of Stockholm of 14 July 1967, requires the seizure on importation of all goods bearing a false or deceptive indication of source, prohibits the use in trade of indications capable of deceiving the public as to the source of goods, and reserves to the courts of each country the decision which appellations, on account of their generic character, fall outside its provisions.

Two agreements, one day, and the confusion they cause

Both were concluded at Madrid on 14 April 1891. One concerns the international registration of marks, worked in [The Madrid Agreement 1891: International Registration of Marks]. This one concerns false indications of source.

They have nothing in common but the city and the date. One is a registration system; this one is a set of obligations about seizure.

A candidate who confuses them loses the whole question. The safe practice is to name it in full: the Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods.

Why it exists

Because Paris Article 10 was not enough. Article 10 of the Paris Convention applies the seizure provisions of Article 9 to a false indication of source, but it requires the indication to be false, and it left the details of enforcement to each country.

And because the wine trade needed it. The pressure came from producers of goods whose reputation was tied to a place, above all wines and spirits, whose names were being applied to goods from elsewhere.

So a special agreement was made under Paris Article 19, going further than the Convention and binding only those who joined it.

Article 1: seizure

Article 1(1): all goods bearing a false or deceptive indication by which one of the countries to which this Agreement applies, or a place situated therein, is directly or indirectly indicated as being the country or place of origin shall be seized on importation into any of the said countries.

Note the word deceptive. Paris Article 10 speaks of a false indication; this Agreement adds indications that are literally true but deceptive, which is a real extension.

Article 1(2): seizure shall also be effected in the country where the false or deceptive indication has been applied, or into which the goods bearing it have been imported.

In one line

The Hague system lets a designer file one international application, in one language, with one set of fees, and obtain protection for up to a hundred designs in every contracting party designated.

In exam wording: the Hague Agreement Concerning the International Registration of Industrial Designs, in its Geneva Act of 2 July 1999, permits any person who is a national of, or is domiciled or has a habitual residence or a real and effective industrial or commercial establishment in, a Contracting Party, to file an international application directly with the International Bureau or through the Office of a Contracting Party, and provides that the resulting international registration has, in each designated Contracting Party, the effect of an application for the grant of protection under that party's law.

Why there are three Acts at once

The Hague Agreement was concluded in 1925 and has been revised at London in 1934, at The Hague in 1960, and at Geneva in 1999, with Complementary and Additional Acts in between.

Three Acts have been in force simultaneously: the 1934 London Act, the 1960 Hague Act and the 1999 Geneva Act, so a State may be bound by one, two or all three, and the applicable Act depends on which the designating and designated parties share.

The 1934 Act was frozen by a decision of the Assembly and its application terminated with effect from 18 October 2016, so the live Acts are 1960 and 1999.

The Geneva Act of 1999 is the one that matters, because it was designed to attract countries with examination systems, which the earlier Acts could not, and that is why the United States, Japan, Korea and the European Union joined it.

Articles 1 to 3: vocabulary and entitlement

Article 1 defines the abbreviated expressions, including that "the 1934 Act" means the Act signed at London on 2 June 1934, "the 1960 Act" the Act signed at The Hague on 28 November 1960, "applicant" the person in whose name an international application is filed, "Contracting Party" any State or intergovernmental organisation party to this Act, and "Office" the agency entrusted with the grant of protection for industrial designs.

Article 2 is a saving: the provisions of this Act shall not affect the application of any greater protection which may be accorded by the law of a Contracting Party, nor shall they affect in any way the protection accorded to works of art and works of applied art by international copyright treaties and conventions, nor the protection accorded to industrial designs under the TRIPS Agreement.

Article 3, entitlement. Any person that is a national of a State that is a Contracting Party or of a State member of an intergovernmental organisation that is a Contracting Party, or that has a domicile, a habitual residence or a real and effective industrial or commercial establishment in the territory of a Contracting Party, shall be entitled to file an international application.

In one line

The Geneva Act gives the Hague Union the standard machinery, forbids reservations outright, and sets out how three Acts of the same Agreement operate side by side.

In exam wording: Articles 19 to 34 of the Geneva Act of the Hague Agreement provide for a common Office of several States, define the membership of the Hague Union, establish the Assembly and the role of the International Bureau, govern the finances and the Regulations, and contain the provisions on revision, amendment, becoming party, effective dates, the prohibition of reservations, declarations, the applicability of the 1934 and 1960 Acts, denunciation, languages and the depositary.

Articles 19 and 20: the Office and the Union

Article 19(1): if several States desiring to become party to this Act have effected, or if several States party to this Act agree to effect, a unification of their domestic legislation on industrial designs, they may notify the Director General that a common Office shall be substituted for the national Office of each of them, and that the whole of their respective territories shall be deemed to be a single Contracting Party for the purposes of the Act.

Article 19(2) requires such a notification to take effect three months after the date of the communication.

Article 20: the Contracting Parties shall be members of the same Union as the States party to the 1934 Act or the 1960 Act.

So there is one Hague Union with three Acts, exactly as there is one Madrid Union with two treaties.

Article 21: the Assembly

Article 21(1)(a): the Contracting Parties shall be members of the same Assembly as the States bound by Article 2 of the 1967 Complementary Act.

Article 21(1)(b): each member of the Assembly shall be represented in the Assembly by one delegate, who may be assisted by alternate delegates, advisors and experts, and each delegate may represent only one Contracting Party.

Article 21(1)(c): members of the Assembly that are not members bound by the 1967 Complementary Act shall be invited to the meetings of the Assembly as observers on any matters concerning only that Act.

Article 21(2)(a) sets the functions. The Assembly shall deal with all matters concerning the maintenance and development of the Union and the implementation of this Act; exercise the rights and perform the tasks specially conferred upon it; give directions to the Director General concerning the preparations for revision conferences and decide the convocation of any such conference; amend the Regulations; review and approve the reports and activities of the Director General; determine the programme and adopt the biennial budget and approve the final accounts; adopt the financial regulations; establish committees and working groups; determine observers; and take any other appropriate action.

In one line

The Lisbon Agreement lets a country register an appellation of origin once, at Geneva, and have it protected in every other member country unless that country refuses within a year, and the Geneva Act of 2015 extended the same machinery to geographical indications.

In exam wording: the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, of 31 October 1958, as revised at Stockholm on 14 July 1967 and amended on 28 September 1979, establishes a Special Union within the framework of the Paris Union under which appellations of origin recognised and protected as such in the country of origin are registered with the International Bureau and protected in the other countries of the Special Union.

Articles 1 and 2: the Union and the definition

Article 1(1): the countries to which this Agreement applies constitute a Special Union within the framework of the Union for the Protection of Industrial Property.

Article 1(2): they undertake to protect on their territories, in accordance with the terms of this Agreement, the appellations of origin of products of the other countries of the Special Union, recognised and protected as such in the country of origin and registered at the International Bureau.

Article 2(1) is the definition and it must be quoted exactly. Appellation of origin means the geographical denomination of a country, region, or locality, which serves to designate a product originating therein, the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.

Three elements: a geographical denomination; designating a product originating there; whose quality or characteristics are due exclusively or essentially to the geographical environment, including natural and human factors.

Article 2(2): the country of origin is the country whose name, or the country in which is situated the region or locality whose name, constitutes the appellation of origin which has given the product its reputation.

Compare the TRIPS definition and the difference is examinable. TRIPS Article 22.1 defines a geographical indication as an indication which identifies a good as originating in a territory, region or locality, where a given quality, reputation or other characteristic is essentially attributable to its geographical origin. So a geographical indication is wider: reputation alone will do, the link need only be essential rather than exclusive or essential, and the indication need not be a geographical name at all.

An appellation of origin is therefore a narrow species of the wider genus.

Articles 3 to 6: protection

Article 3 is the scope of protection. Protection shall be ensured against any usurpation or imitation, even if the true origin of the product is indicated or if the appellation is used in translated form or accompanied by terms such as kind, type, make, imitation, or the like.

In one line

The Nice Agreement supplies the list of forty five classes into which goods and services are put for the purposes of registering a trade mark, and it expressly declines to decide anything about the scope of protection.

In exam wording: the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks, of 15 June 1957, as revised at Stockholm on 14 July 1967 and at Geneva on 13 May 1977 and amended on 28 September 1979, establishes a Special Union which adopts a common classification of goods and services, the classification having in each country of the Special Union the effect attributed to it by that country and not being binding on the scope of the protection afforded to any given mark.

Why a classification is needed at all

Because a trade mark right is a right in a sign for particular goods or services, not in a word at large. So every registration must define what it covers, and every search must be able to find what might conflict.

Without a common classification, a search is impossible across borders. An examiner in one country cannot know whether a mark registered elsewhere covers the same field if the two offices describe goods differently.

And a registry needs a filing structure. Forty five classes is a filing cabinet.

But a classification is an administrative tool and not a rule of law, and Article 2 of this Agreement says so, which is the single most important thing about it.

Articles 1 and 2: the Union and the classification

Article 1(1): the countries to which this Agreement applies constitute a Special Union and adopt a common classification of goods and services for the purposes of the registration of marks.

Article 1(2): the classification comprises a list of classes, together with explanatory notes if appropriate, and an alphabetical list of goods and services with an indication of the class into which each of them falls.

Article 1(3): the classification consists of the list of classes and the alphabetical list published in 1971 by the International Bureau, with such amendments and additions as the Committee of Experts may make under Article 3.

Article 1(4): the classification is in English and French, both texts being equally authentic.

Article 2(1) is the operative limitation, and it must be quoted. Subject to the requirements prescribed by this Agreement, the effect of the classification shall be that attributed to it by each country of the Special Union. In particular, the classification shall not bind the countries of the Special Union in respect of either the evaluation of the extent of the protection afforded to any given mark or the recognition of service marks.

In one line

Locarno classifies industrial designs and Strasbourg creates the International Patent Classification, and neither decides anything about the scope of any right.

In exam wording: the Locarno Agreement Establishing an International Classification for Industrial Designs, of 8 October 1968 as amended on 28 September 1979, and the Strasbourg Agreement Concerning the International Patent Classification, of 24 March 1971 as amended on 28 September 1979, each establish a Special Union which adopts a common classification, in each case administrative in effect and expressly without binding force as to the scope of protection or the extent of the rights conferred.

The Locarno Agreement 1968

Article 1(1): the countries to which this Agreement applies constitute a Special Union and adopt a common classification for industrial designs.

Article 1(2): the classification comprises a list of classes and subclasses, an alphabetical list of goods in which industrial designs are incorporated with an indication of the classes and subclasses into which they fall, and explanatory notes.

Article 1(3): the classification consists of the list published in 1968 by the International Bureau, with such amendments and additions as the Committee of Experts may make under Article 3.

Article 1(4): the classification is in English and French, both equally authentic.

Article 2(1) is the limitation, in the same terms as Nice. Subject to the requirements prescribed by this Agreement, the international classification shall be solely of an administrative character, and each country may attribute to it the legal scope it desires. In particular, the international classification shall not bind the countries of the Special Union as regards the nature and scope of the protection afforded to the design in those countries.

The word solely is stronger than the Nice formula, and it makes the point explicitly.

Article 2(2): each country reserves the right to use the classification as a principal or as a subsidiary system.

Article 2(3): the Offices shall include in the official documents for the deposit or registration of designs, and in publications, the numbers of the classes and subclasses.

Article 2(4): in selecting terms for inclusion in the alphabetical list, the Committee of Experts shall exercise due discretion in the use of terms in which rights of exclusivity may exist, and the inclusion of any word in no way constitutes an expression of opinion on whether it is subject to such rights.

Article 3: the Committee of Experts, in which each country is represented, which decides amendments and additions, with four fifths for amendments and a simple majority for additions and other amendments, in the same structure as Nice.

Article 4: notification, entry into force and publication, amendments taking effect six months after despatch and additions on the date of despatch.

In one line

The Vienna Agreement classifies pictures, so that an examiner confronted with a device mark of a bird in a circle can find every other bird in a circle already on the register.

In exam wording: the Vienna Agreement Establishing an International Classification of the Figurative Elements of Marks, of 12 June 1973 as amended on 1 October 1985, establishes a Special Union which adopts a classification of the figurative elements of marks into categories, divisions and sections, the classification being solely of an administrative character and not binding on the countries of the Special Union as regards the extent of the protection afforded to any mark.

The problem it answers

A word mark can be searched alphabetically. A device mark cannot be searched at all unless somebody has described the picture in a standard way.

Consider a mark consisting of an eagle with outstretched wings above a shield. An examiner asked whether it conflicts with anything on the register must be able to find every eagle, every bird of prey, every shield, and every combination.

Nice does not help. Nice classifies the goods and services; it says nothing about what the mark looks like.

So Vienna classifies the picture itself, and the classification is what makes a figurative search possible.

Articles 1 to 4: the Union, the classification and its use

Article 1: the countries to which this Agreement applies constitute a Special Union and adopt a common classification for the figurative elements of marks, called the Classification of Figurative Elements.

Article 2(1): the classification comprises a list of categories, divisions and sections in which the figurative elements of marks are classified, together with, as the case may be, explanatory notes.

Article 2(2): the classification is contained in one authentic copy, in the English and French languages, signed by the Director General and deposited with him.

Article 3, languages: the classification is established in English and French, both texts being equally authentic, and official texts in other languages are established by the International Bureau after consultation with the interested Governments.

Article 4(1) is the limitation, and it is in the same form as Nice and Locarno. Subject to the requirements prescribed by this Agreement, the scope of the classification shall be that attributed to it by each country of the Special Union. In particular, the classification shall not bind the countries of the Special Union in respect of the extent of the protection afforded to the mark.

Article 4(2): each country of the Special Union reserves the right to use the classification either as a principal or as a subsidiary system.

Article 4(3): the competent authorities of the countries of the Special Union shall include in the official documents and publications relating to registrations and renewals of marks the numbers of the categories, divisions and sections into which the figurative elements of those marks belong.

In one line

Every State party to the Nairobi Treaty must refuse to register, and must prohibit the commercial use of, the five interlaced rings as a mark, unless the International Olympic Committee has authorised it.

In exam wording: the Nairobi Treaty on the Protection of the Olympic Symbol, adopted at Nairobi on 26 September 1981 and in force from 25 September 1982, obliges every State party to refuse or to invalidate the registration as a mark, and to prohibit by appropriate measures the use as a mark or other sign for commercial purposes, of any sign consisting of or containing the Olympic symbol as defined in the Charter of the International Olympic Committee, except with the authorisation of that Committee.

Why a treaty for one symbol

Because the five rings are not a trade mark and cannot easily be one. They are not used by a trader on goods; they identify a movement, and the International Olympic Committee licenses them to sponsors as a source of revenue.

Because the ordinary law was inadequate. A sign nobody uses in trade may not be registrable as a mark by its owner, and once it is not registered a third party may register it.

And because Paris Article 6ter does not reach it. That article protects the emblems of States and of international intergovernmental organisations, and the International Olympic Committee is neither: it is a private association under Swiss law.

So a treaty was made to do for one symbol what Article 6ter does for State emblems, and that is the doctrinal point worth making in an answer.

Article 1: the obligation

Article 1: any State party to this Treaty shall be obliged, subject to Articles 2 and 3, to refuse or to invalidate the registration as a mark and to prohibit by appropriate measures the use, as a mark or other sign, for commercial purposes, of any sign consisting of or containing the Olympic symbol, as defined in the Charter of the International Olympic Committee, except with the authorisation of the International Olympic Committee.

The definition is by reference. The Olympic symbol is defined in the Charter as five interlaced rings, and the Treaty adopts that definition rather than restating it, which is why an answer should say so rather than describing the rings.

Note the two limbs. Refuse or invalidate registration; and prohibit commercial use as a mark or other sign. The second is wider than trade mark law, because it catches use as a sign that is not a mark.

Article 2: the exceptions

Article 2(1): the obligation provided for in Article 1 shall not bind any State party to this Treaty as regards any mark consisting of or containing the Olympic symbol where that mark was registered in that State before the date on which this Treaty enters into force with respect to that State or during any period during which, in that State, the obligation is deemed suspended under Article 3.

In one line

The Washington Treaty was made to protect the pattern etched on a silicon chip, it never came into force, and TRIPS Article 35 made most of it binding on the whole world anyway.

In exam wording: the Treaty on Intellectual Property in Respect of Integrated Circuits, adopted at Washington on 26 May 1989, obliges contracting parties to secure, throughout their territory, intellectual property protection in respect of layout designs, or topographies, of integrated circuits, and although it has never entered into force, Article 35 of TRIPS obliges every member of the World Trade Organization to provide protection in accordance with its Articles 2 to 7 other than Article 6(3), Article 12 and Article 16(3).

Why a treaty for a chip layout

Because no existing category fitted. The three dimensional arrangement of elements on a semiconductor is not an invention in the ordinary sense, because it is dictated largely by the function; it is not a literary or artistic work; and it is not a design judged by the eye, because nobody looks at it.

Because copying is trivial and creation is expensive. A layout takes years and enormous investment; photographing and reverse engineering it takes weeks.

And because national systems had diverged. The United States Semiconductor Chip Protection Act of 1984 created a sui generis right and offered protection to foreign nationals only on a reciprocity basis, and Japan and the European Communities followed with their own. A treaty was needed to stop the reciprocity conditions hardening.

Articles 1 to 3: the Union and the subject matter

Article 1: the Contracting Parties constitute themselves into a Union for the purposes of this Treaty.

Article 2 defines the terms. An integrated circuit means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and on a piece of material and which is intended to perform an electronic function. A layout design (topography) means the three dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three dimensional disposition prepared for an integrated circuit intended for manufacture.

Article 3(1)(a) is the obligation: each Contracting Party shall have the obligation to secure, throughout its territory, intellectual property protection in respect of layout designs in accordance with this Treaty, and it shall in particular secure adequate measures to ensure the prevention of acts considered unlawful under Article 6 and appropriate legal remedies.

Article 3(2)(a): the obligation applies to layout designs that are original in the sense that they are the result of their creators' own intellectual effort and are not commonplace among creators of layout designs and manufacturers of integrated circuits at the time of their creation.

In one line

The Trademark Law Treaty does not say what a mark is or when it should be refused; it says what an office may demand of an applicant, and, far more usefully, what it may not.

In exam wording: the Trademark Law Treaty, adopted at Geneva on 27 October 1994 and in force from 1 August 1996, harmonises the administrative procedures for the registration of trade marks by prescribing a maximum list of the indications and elements an Office may require in an application and in subsequent requests, and by prohibiting any requirement not so listed, in particular the requirement of a certificate of registration in another country or of evidence of trading activity.

Why a treaty about forms

Because the formalities were the real barrier. By the 1990s the substantive law of trade marks was reasonably similar across the industrial world; what differed was what each office demanded.

A single change of address for a proprietor with two hundred registrations in forty countries could require forty separate requests, forty powers of attorney, forty notarisations and forty legalisations.

The cost fell disproportionately on small enterprises, and the answer was to fix a maximum list of what may be required.

And it is a maximum, not a minimum. An office may always ask for less. That is what distinguishes this treaty from every substantive instrument in the module.

Articles 1 to 3: scope and the application

Article 1 defines the abbreviated expressions, including Office, registration, application, person, holder, register, Paris Convention, Nice Classification and communication.

Article 2(1)(a): this Treaty shall apply to marks consisting of visible signs, provided that only those Contracting Parties which accept for registration three dimensional marks shall be obliged to apply this Treaty to such marks.

Article 2(1)(b) is the exclusion, and it matters: this Treaty shall not apply to hologram marks and to marks not consisting of visible signs, in particular sound marks and olfactory marks.

That single exclusion is the reason the Singapore Treaty was made twelve years later.

Article 2(2)(a): the Treaty applies to marks relating to goods, to marks relating to services, or to both.

Article 2(2)(b): it does not apply to collective marks, certification marks and guarantee marks.

Article 3(1)(a) is the heart of the Treaty. Any Contracting Party may require that an application contain some or all of the following indications or elements: a request for registration; the name and address of the applicant; the name of a State of which the applicant is a national and of which he is domiciled, and the name of a State in which he has a real and effective establishment; the legal nature of the applicant if a legal entity; the name and address of the representative where there is one; the address for service where required; a declaration claiming priority with the supporting indications; a declaration claiming protection from an exhibition; where the Office uses characters of a particular script, a transliteration; a translation of the mark; the names of the goods or services grouped according to the classes of the Nice Classification; a signature; and a declaration of intention to use the mark or of actual use.

In one line

The Singapore Treaty is the Trademark Law Treaty made to work for every kind of mark, with relief when a deadline is missed, rules about licence recordal, an Assembly of its own, and electronic filing.

In exam wording: the Singapore Treaty on the Law of Trademarks, adopted at Singapore on 27 March 2006 and in force from 16 March 2009, applies to marks consisting of any sign registrable under the law of a Contracting Party, provides for relief measures where a time limit is missed, regulates the recordal of licences, permits communications in electronic form, and establishes an Assembly, while otherwise following the structure of the Trademark Law Treaty of 1994.

Articles 1 to 3: scope and application

Article 1 defines the abbreviated expressions, including Office, communication, register, holder, Nice Classification, licence, licensee, Assembly, Organization and Director General.

Article 2(1): any Contracting Party shall apply this Treaty to marks consisting of signs which can be registered as marks under its law.

That is the change from the 1994 Treaty, whose Article 2(1)(b) had excluded holograms, sound marks and olfactory marks. The Singapore Treaty follows the national law: whatever a Contracting Party registers, the Treaty's procedures apply to.

Article 2(2)(a): the Treaty applies to marks relating to goods, to services, or to both.

Article 2(2)(b): it does not apply to collective marks, certification marks and guarantee marks, which is unchanged from 1994.

Article 3(1): a Contracting Party may require an application to contain some or all of the indications and elements listed, which follow the 1994 list with the addition, where the Contracting Party so provides, of one or more reproductions of the mark as prescribed in the Regulations.

Article 3(4): no Contracting Party shall demand requirements other than those referred to in the article and in Article 8, and in particular the four prohibitions of the 1994 Treaty are carried over: no extract from a register of commerce, no indication or evidence of trading activity, no indication or evidence of an activity corresponding to the goods or services, and no evidence of registration in another country except under Paris Article 6quinquies.

Articles 4 to 9: procedure

Article 4, representation and address for service, in the same terms as 1994, with a single power of attorney permitted for several applications or registrations.

Article 5, filing date, listing the indications and elements an Office may require and forbidding any other. Article 5(3) requires the Office to notify a deficiency and permit correction.

Article 6, single registration for several classes: where goods or services belonging to several classes of the Nice Classification are included in one application, that application shall result in one and the same registration.

In one line

The Patent Law Treaty does for patents what the Trademark Law Treaty did for marks, fixing the maximum formal requirements an office may impose and giving an applicant a route back when a deadline is missed.

In exam wording: the Patent Law Treaty, adopted at Geneva on 1 June 2000 and in force from 28 April 2005, harmonises the formal requirements of national and regional patent applications and patents, prescribing a maximum set of requirements which a Contracting Party may impose, standardising the requirements for according a filing date, providing relief in respect of time limits and reinstatement of rights, and restricting the grounds on which a patent may be revoked for a formal defect.

Articles 1 and 2: vocabulary and the general principles

Article 1 defines the abbreviated expressions used throughout, including Office, application, patent, person, communication, records, Regulations, Patent Cooperation Treaty, Contracting Party and Assembly, and it is the ordinary opening article of a modern WIPO treaty.

The general principles

Article 2(1) is the character of the whole Treaty: nothing in this Treaty or the Regulations shall be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to patents as it desires.

So the Treaty says nothing about patentability, novelty, inventive step, exclusions or infringement. A candidate who suggests otherwise has misunderstood it entirely.

Article 2(2): nothing in this Treaty or the Regulations shall be construed as limiting the freedom of a Contracting Party to prescribe such requirements as, from the viewpoint of national security, it deems necessary, and Article 4 repeats it as a separate security exception.

Article 3, applications and patents to which the Treaty applies. It applies to national and regional applications for patents for invention and for patents of addition, filed with or for the Office of a Contracting Party, and to international applications under the Patent Cooperation Treaty once they have entered the national phase; and to patents for invention and patents of addition granted with effect for a Contracting Party.

Article 5: the filing date, and why it is the most useful article

Article 5(1)(a): a Contracting Party shall provide that the filing date of an application shall be the date on which its Office has received all of the following elements, filed at the option of the applicant on paper or otherwise as permitted by the Office: an express or implicit indication to the effect that the elements are intended to be an application; indications allowing the identity of the applicant to be established or allowing the applicant to be contacted by the Office; and a part which on the face of it appears to be a description.

In one line

The newest of the twenty eight WIPO treaties requires a patent applicant whose invention is based on genetic resources to say where they came from, and it is the first time in twenty five years of negotiation that a disclosure requirement has appeared in a WIPO instrument.

In exam wording: the WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge, adopted at Geneva on 24 May 2024, requires each Contracting Party, where the claimed invention in a patent application is based on genetic resources, to require applicants to disclose the country of origin or source of those genetic resources, and, where the claimed invention is based on traditional knowledge associated with genetic resources, to disclose the indigenous peoples or local community that provided it.

Twenty five years of negotiation in one paragraph

The Convention on Biological Diversity of 1992 asserted sovereign rights over genetic resources and required access on prior informed consent and mutually agreed terms.

But a patent office in a third country knew nothing about it. An applicant could obtain a patent on an invention derived from material taken without consent, and the country of origin would learn of it only by accident, as India did with turmeric, neem and basmati.

India, Brazil and a group of like minded countries proposed a disclosure requirement at the TRIPS Council from 1999 and at the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, established in 2000.

The industrial countries resisted for two decades, arguing that a disclosure requirement would create uncertainty in the patent system and belonged in access legislation rather than in patent law.

The Diplomatic Conference of May 2024 settled it, and the compromise is in Articles 3, 4 and 5.

Articles 1 and 2: objectives and terms

Article 1, objectives. The objectives of this Treaty are to enhance the efficacy, transparency and quality of the patent system with regard to genetic resources and traditional knowledge associated with genetic resources, and to prevent patents from being granted erroneously for inventions that are not novel or inventive with regard to genetic resources and traditional knowledge associated with genetic resources.

Note what the objectives are not. They are not to create a right in genetic resources or in traditional knowledge, and they are not to enforce access legislation. They are about the quality of patents.

Article 2, list of terms. Genetic resources means genetic material of actual or potential value. Genetic material means any material of plant, animal, microbial or other origin containing functional units of heredity. Country of origin of genetic resources means the country which possesses those genetic resources in in situ conditions. Source of genetic resources refers to any source from which the applicant has obtained the genetic resources, such as a research centre, gene bank, the Multilateral System of the International Treaty on Plant Genetic Resources for Food and Agriculture, or any other ex situ collection or depository of genetic resources. Source of traditional knowledge associated with genetic resources refers to any source from which the applicant has obtained the traditional knowledge, such as scientific literature, publicly accessible databases, patent applications and patent publications.

In one line

The Riyadh Design Law Treaty does for industrial designs what the Trademark Law Treaty did for marks and the Patent Law Treaty did for patents: it fixes the maximum formalities an office may impose and gives a designer a route back when a deadline is missed.

In exam wording: the Riyadh Design Law Treaty, adopted at Riyadh on 22 November 2024, harmonises the procedural requirements for obtaining protection of industrial designs, prescribing a maximum set of requirements for an application, standardising the requirements for according a filing date, providing a grace period in case of disclosure, permitting deferment of publication, and providing relief in respect of time limits and reinstatement of rights.

Why a fourth law treaty

Because designs were the last category without one. Marks had the Trademark Law Treaty of 1994 and the Singapore Treaty of 2006; patents had the Patent Law Treaty of 2000; designs had nothing.

Because design filings are dominated by small enterprises and individual designers. A design is cheap to create and fast to obsolesce, so the formalities matter more, proportionately, than they do for a patent.

And because the negotiation took eighteen years. The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications began work in 2006, and the sticking point throughout was whether a disclosure requirement for traditional cultural expressions and traditional knowledge should be included. The compromise was a resolution adopted alongside the Treaty rather than a provision in it.

Articles 1 to 3: vocabulary, principles and scope

Article 1 defines the abbreviated expressions, including Office, application, industrial design, procedure before the Office, applicant, holder, Contracting Party and Regulations.

Article 2, general principles. Nothing in this Treaty or the Regulations shall be construed as prescribing anything that would limit the freedom of a Contracting Party to prescribe such requirements of the applicable substantive law relating to industrial designs as it desires, nor as limiting the freedom of a Contracting Party to prescribe such requirements as, from the viewpoint of national security, it deems necessary.

Article 3, scope. The Treaty applies to applications for the protection of industrial designs filed with or for the Office of a Contracting Party, and to industrial designs protected with effect for a Contracting Party, in each case as prescribed in the Regulations.

Articles 4 to 6: the application and the filing date

Article 4, application. A Contracting Party may require an application to contain some or all of a listed set of indications and elements, including a request for protection, the name and address of the applicant, a representation of the industrial design as prescribed, an indication of the product or products constituting the industrial design or in relation to which it is to be used, a description, a claim where the applicable law so requires, an indication of the class of the Locarno Classification, the name of the creator, a priority declaration, and a fee.

In one line

UPOV gives a plant breeder an exclusive right in a variety that is new, distinct, uniform and stable, and the 1991 Act narrowed what a farmer may do with the seed, which is why India did not join.

In exam wording: the International Convention for the Protection of New Varieties of Plants, of 2 December 1961, as revised at Geneva on 10 November 1972, on 23 October 1978 and on 19 March 1991, obliges each Contracting Party to grant and protect breeders' rights in plant varieties which are new, distinct, uniform and stable, the 1991 Act extending protection to all genera and species, extending the scope of the right to harvested material and to essentially derived varieties, and reducing the farmer's freedom to an optional exception.

First, the institutional point

UPOV is not WIPO. It is the International Union for the Protection of New Varieties of Plants, a separate intergovernmental organisation established by the 1961 Convention.

The confusion is understandable and it is a mistake. UPOV's offices are in the WIPO building in Geneva, and by an agreement between the two organisations the Director General of WIPO is the Secretary-General of UPOV. But UPOV has its own membership, its own Council and its own budget, and a State that joins WIPO does not join UPOV.

So UPOV is not one of the twenty eight treaties WIPO administers. A candidate who lists it among them has made a common error.

Articles 1 to 4: obligations and national treatment

Article 1 defines the terms, including breeder, meaning the person who bred, or discovered and developed, a variety, or that person's employer or successor in title; breeder's right, meaning the right provided for in this Convention; and variety, meaning a plant grouping within a single botanical taxon of the lowest known rank which can be defined by the expression of the characteristics resulting from a given genotype, distinguished from any other plant grouping by the expression of at least one of those characteristics, and considered as a unit with regard to its suitability for being propagated unchanged.

Article 2, the basic obligation: each Contracting Party shall grant and protect breeders' rights.

Article 3, genera and species to be protected. Article 3(1): a Contracting Party already bound by the 1961, 1972 or 1978 Act shall apply the Convention to at least fifteen plant genera or species at the date of becoming bound, and to all plant genera and species at the latest by the expiration of a period of ten years. Article 3(2): a new Contracting Party shall apply it to at least ten plant genera or species and to all plant genera and species at the latest by the expiration of a period of five years.

In one line

UPOV is a Union with a Council of its members and an Office headed by the Secretary-General, who is the Director General of WIPO, and a State may not join the 1991 Act until the Council has advised that its law conforms.

In exam wording: Articles 22 to 42 of the 1991 Act of the UPOV Convention govern the cancellation of the breeder's right, the membership, legal status and organs of the Union, the Council, the Office of the Union, languages and finances, the implementation of the Convention, the relations between Contracting Parties and States bound by earlier Acts, special agreements, signature, ratification and accession, reservations, communications, entry into force and the closing of earlier Acts, revision, denunciation, the preservation of existing rights, the texts and the depositary functions.

Article 22: cancellation

Article 22(1)(a): the breeder's right may be cancelled by a Contracting Party if it is established that the conditions of uniformity or stability are no longer fulfilled.

Article 22(1)(b): it may further be cancelled if, after being requested to do so and within a prescribed period, the breeder does not provide the authority with the information, documents or material deemed necessary for verifying the maintenance of the variety; does not pay the fees due to keep the right in force; or does not propose, where the denomination is cancelled after grant, another suitable denomination.

Article 22(2): the breeder's right may not be cancelled for any reason other than those referred to.

Note the difference from Article 21. Nullity looks back to the grant and destroys the right from the beginning; cancellation looks forward and ends it from the date of cancellation.

Articles 23 to 25: the Union

Article 23: the Contracting Parties shall be members of the Union.

Article 24(1): the Union shall have legal personality.

Article 24(2): the Union shall enjoy on the territory of each Contracting Party, in conformity with the laws of that party, such legal capacity as may be necessary for the fulfilment of the objectives of the Union and for the exercise of its functions.

Article 24(3): the seat of the Union and of its permanent organs is at Geneva.

Article 24(4): the Union shall have a headquarters agreement with the Swiss Confederation.

Article 25: the permanent organs of the Union shall be the Council and the Office of the Union.

Two organs only. UPOV is a smaller institution than WIPO and its structure shows it.

Article 26: the Council

Article 26(1): the Council shall consist of the representatives of the members of the Union, each member having one representative in the Council and one alternate.

In one line

Forty four countries met at a hotel in New Hampshire in July 1944 and designed three institutions for the post war economy; two were built and the third, the trade organisation, was not, so a temporary agreement did its work for forty seven years.

In exam wording: the United Nations Monetary and Financial Conference, held at Bretton Woods, New Hampshire, from 1 to 22 July 1944, established the International Monetary Fund and the International Bank for Reconstruction and Development, and contemplated a third institution for trade, which was negotiated as the International Trade Organization in the Havana Charter of 1948 but never came into existence, leaving the General Agreement on Tariffs and Trade of 1947 to govern world trade until the World Trade Organization was established in 1995.

Why the conference happened

Because everybody present believed the depression had caused the war.

The sequence they had lived through. The crash of 1929; the Smoot Hawley Tariff Act of 1930 in the United States, raising tariffs on over twenty thousand goods; retaliation by more than twenty countries; a collapse of world trade by roughly two thirds between 1929 and 1934; competitive devaluations as countries abandoned the gold standard one by one; exchange controls and bilateral clearing arrangements; and, on that ground, the political movements that produced the war.

So the diagnosis was economic nationalism, and the remedy was to build institutions that would make it harder.

Three problems, three institutions. Exchange rate instability and balance of payments crises needed a fund. Reconstruction and development needed a bank. Protectionism needed a trade organisation.

The conference

Held at the Mount Washington Hotel, Bretton Woods, New Hampshire, from 1 to 22 July 1944, with delegates from forty four allied nations, while the war was still being fought.

Two plans were on the table. The British plan, prepared by John Maynard Keynes, proposed an International Clearing Union with an international unit of account and a mechanism placing an obligation on surplus countries as well as deficit ones. The American plan, prepared by Harry Dexter White, proposed a stabilisation fund with quotas subscribed by members and drawing rights limited to those subscriptions.

The American plan prevailed, because the United States was the creditor and the British were not.

India was represented, and was a founding member of both institutions.

The International Monetary Fund

Its purpose. To promote international monetary cooperation, to facilitate the expansion and balanced growth of international trade, to promote exchange stability, to assist in the establishment of a multilateral system of payments, and to make resources temporarily available to members with balance of payments difficulties.

The par value system. Each member fixed a par value for its currency in terms of gold or of the United States dollar, and undertook to keep the market rate within a narrow band, devaluing only with the Fund's concurrence for a fundamental disequilibrium.

In one line

GATT was a treaty that spent forty seven years pretending to be an organisation, and its basic objective was to reduce tariffs and eliminate discrimination so that trade could grow.

In exam wording: the General Agreement on Tariffs and Trade, signed at Geneva on 30 October 1947 and applied provisionally from 1 January 1948, had as its objectives the substantial reduction of tariffs and other barriers to trade and the elimination of discriminatory treatment in international commerce, pursued through the obligations of most favoured nation treatment, national treatment, tariff binding and the general prohibition of quantitative restrictions.

The objectives, from the preamble

The preamble states them, and a candidate asked for the basic objectives of GATT should begin there. The contracting parties recognise that their relations in the field of trade and economic endeavour should be conducted with a view to:

raising standards of living;

ensuring full employment and a large and steadily growing volume of real income and effective demand;

developing the full use of the resources of the world;

and expanding the production and exchange of goods.

And the means: entering into reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce.

Note what is not there. Free trade is not an objective. The objectives are economic outcomes, and reduced tariffs and non discrimination are the means.

The four pillars

1. Most favoured nation, Article I. With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation, any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

2. National treatment, Article III. Internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, should not be applied to imported or domestic products so as to afford protection to domestic production; and imported products shall be accorded treatment no less favourable than that accorded to like domestic products.

Together those two are the principle of non discrimination. Most favoured nation forbids discrimination between foreigners; national treatment forbids discrimination between foreigners and locals.

3. Tariff bindings, Article II. Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in its Schedule of Concessions. A bound tariff may not be exceeded, and the Schedules are what the rounds of negotiation produce.

In one line

There were eight rounds of trade negotiation between 1947 and 1994, the first five were about tariffs, the sixth and seventh discovered that tariffs were no longer the problem, and the eighth built an organisation.

In exam wording: the General Agreement on Tariffs and Trade was developed through eight rounds of multilateral trade negotiations, Geneva in 1947, Annecy in 1949, Torquay in 1951, Geneva in 1956, the Dillon Round from 1960 to 1961, the Kennedy Round from 1964 to 1967, the Tokyo Round from 1973 to 1979 and the Uruguay Round from 1986 to 1994, the last of which established the World Trade Organization and concluded the TRIPS Agreement.

The five tariff rounds

Geneva, 1947. Twenty three countries, tariffs only. Some forty five thousand tariff concessions covering about a fifth of world trade. The round that produced the Agreement itself.

Annecy, 1949. Thirteen countries, tariffs only, about five thousand concessions. Ten new countries acceded.

Torquay, 1951. Thirty eight countries, tariffs only, about eight thousand seven hundred concessions, reducing 1948 tariff levels by about a quarter.

Geneva, 1956. Twenty six countries, tariffs only, and a modest result of about two and a half billion dollars in trade covered. Japan acceded.

The Dillon Round, Geneva, 1960 to 1961. Twenty six countries, tariffs only. Its occasion was the formation of the European Economic Community, whose common external tariff required renegotiation of the members' bindings under GATT Article XXIV:6.

What the five have in common. Each proceeded product by product, on a request and offer basis, bilaterally between principal suppliers, with the results extended to all by Article I. That method was workable while there were few participants and tariffs were high, and it became impossibly slow as both changed.

The Kennedy Round, 1964 to 1967

Sixty two countries. The first round to abandon the product by product method for a linear approach: a general percentage cut across the board, with exceptions negotiated.

The result was an average tariff reduction of about thirty five per cent on industrial products.

And the first non tariff agreement. An Anti Dumping Code was concluded, though it bound only its signatories, which is the first appearance of the plurilateral technique that would dominate the next round.

Its significance for this paper. It is the round at which the participants discovered that tariffs were no longer the main obstacle, because as tariffs fell, other measures became visible: subsidies, standards, customs valuation, licensing.

The Tokyo Round, 1973 to 1979

One hundred and two countries, the largest so far.

Average tariffs on industrial products fell to about six per cent.

Its real product was the Codes. Nine agreements were concluded on non tariff measures: technical barriers to trade, government procurement, subsidies and countervailing measures, customs valuation, import licensing procedures, anti dumping, and arrangements on bovine meat, dairy products and civil aircraft.

In one line

The Uruguay Round lasted seven and a half years, brought agriculture, textiles, services and intellectual property into the trading system, and replaced a provisional agreement with an organisation.

In exam wording: the Uruguay Round of multilateral trade negotiations was launched by the Ministerial Declaration adopted at Punta del Este on 20 September 1986, concluded by the Final Act signed at Marrakesh on 15 April 1994, and produced the Marrakesh Agreement Establishing the World Trade Organization with its four annexes, including in Annex 1C the Agreement on Trade-Related Aspects of Intellectual Property Rights.

The launch: Punta del Este, 1986

The Ministerial Declaration of 20 September 1986 set the mandate, and the intellectual property part of it is worth quoting because its wording was itself the negotiation.

The mandate on trade related aspects of intellectual property rights read: in order to reduce the distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines.

Read what that sentence concedes to each side. The industrial countries obtained "effective and adequate protection"; the developing countries obtained the qualification that enforcement measures must not themselves become barriers to legitimate trade, and the framing of the whole subject as trade related.

The Declaration continued: negotiations shall aim to develop a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods, taking into account work already undertaken in GATT.

And it added a sentence that mattered later: these negotiations shall be without prejudice to other complementary initiatives that may be taken in the World Intellectual Property Organization and elsewhere to deal with these matters.

The developing countries' initial position was that GATT's competence extended only to counterfeit goods in trade, and that standards belonged in WIPO. That position was maintained until about 1989 and then abandoned, for the reasons in the previous chapter.

The course of the negotiation

Fifteen negotiating groups were established under the Trade Negotiations Committee.

The Montreal mid term review, December 1988, deadlocked on agriculture and on intellectual property, and was resumed in Geneva in April 1989, where a framework for the intellectual property negotiation was agreed.

The Brussels Ministerial Conference of December 1990 was intended to conclude the Round and failed, on agriculture, between the United States and the European Communities.

The Draft Final Act of December 1991, prepared by the Director General Arthur Dunkel and known as the Dunkel Draft, put a complete text on the table. Its intellectual property chapter is substantially the TRIPS Agreement as concluded.

In one line

Four industries, one statute and one failed conference explain how a subject that had belonged to WIPO for a century arrived in a trade agreement.

In exam wording: the factors leading to the TRIPS Agreement were the growing share of intellectual property in the value of traded goods and services, the inability of the World Intellectual Property Organization to set enforceable standards or to determine a breach, the failure of the Paris Convention revision conference of 1980 to 1984, the use of unilateral trade retaliation by the United States under section 301 of its Trade Act of 1974, and the availability in the Uruguay Round of concessions in agriculture and textiles that made an exchange possible.

Factor one: what was being traded had changed

By the 1980s a large and rising share of the value of internationally traded goods was intellectual rather than physical.

A pharmaceutical tablet costs almost nothing to make and a fortune to discover. A film reel costs nothing to copy. A software disk costs less than the packaging.

So the traditional trade instrument, the tariff, protected almost nothing. A four per cent duty on an imported medicine is irrelevant if a local manufacturer can make the same molecule and sell it at a tenth of the price, lawfully, because the importing country grants no product patent.

The industrial countries characterised that as a trade problem, and the developing countries characterised it as a matter of domestic policy in which each State was entitled to strike its own balance. Both characterisations were arguable, and the word chosen in the Punta del Este mandate, trade related, was the compromise.

Factor two: WIPO could not deliver

Three limitations, and they are the same three that appear in [WIPO Today: The Committees, the Centre and the Limits].

It cannot legislate. A WIPO treaty is made by a diplomatic conference and binds only ratifiers, so a country that did not want product patents simply did not join an instrument requiring them; and no such instrument existed.

Its standards were minimum and old. Paris requires national treatment, priority and a short list of common rules, and says nothing about what may be patented, for how long, or how a right is enforced. Berne is more substantive but excludes enforcement.

It cannot adjudicate or enforce. Paris Article 28 and Berne Article 33 refer disputes to the International Court of Justice subject to a reservation, and neither has ever been used.

So a country could be in breach of Paris for twenty years and nothing would happen. That sentence is the whole of factor two.

Factor three: the Paris revision conference failed

A diplomatic conference to revise the Paris Convention was convened in 1980 and met in sessions until 1984.

In one line

Sixteen articles establish an organisation, define its scope and functions, create its organs, give it legal personality, and say nothing at all about trade.

In exam wording: the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994 and in force from 1 January 1995, establishes the World Trade Organization as the common institutional framework for the conduct of trade relations among its Members, its Articles I to VIII establishing the Organization, defining its scope, functions and structure, and providing for the Secretariat, the budget and the Organization's status.

Article I: establishment

Article I: the World Trade Organization is hereby established.

Five words, exactly as with the WIPO Convention, and exactly as significant: from 1 January 1995 the trading system had an organisation for the first time.

Article II: scope

Article II:1: the WTO shall provide the common institutional framework for the conduct of trade relations among its Members in matters related to the agreements and associated legal instruments included in the Annexes to this Agreement.

Article II:2 is the single undertaking: the agreements and associated legal instruments included in Annexes 1, 2 and 3, called the Multilateral Trade Agreements, are integral parts of this Agreement, binding on all Members.

Article II:3: the agreements included in Annex 4, called the Plurilateral Trade Agreements, are also part of this Agreement for those Members that have accepted them, and are binding on those Members; they do not create either obligations or rights for Members that have not accepted them.

Article II:4: the General Agreement on Tariffs and Trade 1994 is legally distinct from the General Agreement on Tariffs and Trade dated 30 October 1947.

That last paragraph matters more than it looks. GATT 1994 is a new instrument incorporating GATT 1947 as rectified and amended, together with the protocols, decisions and six Understandings, and the distinction is what allowed the grandfather clause of the Protocol of Provisional Application to be discarded.

Article III: functions

Article III:1: the WTO shall facilitate the implementation, administration and operation, and further the objectives, of this Agreement and of the Multilateral Trade Agreements, and shall also provide the framework for the implementation, administration and operation of the Plurilateral Trade Agreements.

Article III:2: the WTO shall provide the forum for negotiations among its Members concerning their multilateral trade relations in matters dealt with under the agreements in the Annexes, and may provide a forum for further negotiations and a framework for the implementation of their results.

Article III:3: the WTO shall administer the Understanding on Rules and Procedures Governing the Settlement of Disputes.

Article III:4: the WTO shall administer the Trade Policy Review Mechanism.

In one line

The Ministerial Conference meets every two years and makes the political decisions, the General Council does everything else, and the Council for TRIPS is where every question about the intellectual property agreement is actually handled.

In exam wording: the World Trade Organization functions through a Ministerial Conference meeting at least once every two years, a General Council of all Members acting in the intervals and sitting separately as the Dispute Settlement Body and as the Trade Policy Review Body, three sectoral councils for goods, services and trade related aspects of intellectual property rights, and committees established by the Ministerial Conference, the Council for TRIPS overseeing the functioning of the TRIPS Agreement under Article IV:5 of the Marrakesh Agreement.

The Ministerial Conferences and what each did

MU asked for the significant changes since the creation of the WTO, and the Ministerial Conferences are the frame for that answer.

Singapore, December 1996. The first. It produced the Information Technology Agreement, and it introduced the four Singapore issues: investment, competition policy, transparency in government procurement, and trade facilitation, three of which developing countries subsequently refused to negotiate.

Geneva, May 1998. A declaration on global electronic commerce, and the moratorium on customs duties on electronic transmissions, which has been renewed at every Conference since.

Seattle, November and December 1999. Failed, amid large public demonstrations, on agriculture, on implementation and on the process of negotiation itself.

Doha, November 2001. Launched the Doha Development Agenda, and adopted the Declaration on the TRIPS Agreement and Public Health, which is worked in [The Doha Declaration on TRIPS and Public Health, 2001].

Cancun, September 2003. Failed on agriculture and on the Singapore issues.

Hong Kong, December 2005. Agreed to eliminate agricultural export subsidies by 2013, and adopted decisions on cotton and on duty free quota free access for least developed countries.

Geneva, 2009 and 2011. Stocktaking, with no negotiating outcome.

Bali, December 2013. The Trade Facilitation Agreement, the first multilateral agreement concluded under the WTO, together with decisions on agriculture and on least developed countries.

Nairobi, December 2015. The elimination of agricultural export subsidies, and the first Ministerial Conference held in Africa. It also recorded openly that Members did not agree on whether to reaffirm the Doha mandates.

Buenos Aires, December 2017. No ministerial declaration.

Geneva, June 2022. The Agreement on Fisheries Subsidies, the first WTO agreement with an environmental objective at its centre; a decision on the TRIPS Agreement relating to COVID-19 vaccines; and the renewal of the electronic commerce moratorium.

Abu Dhabi, February and March 2024. The renewal of the electronic commerce moratorium, and the accession of Comoros and Timor-Leste.

The two great changes since 1995

MU's question asks for the significant changes, and two dominate.

In one line

The WTO decides by consensus wherever it can, requires a three fourths majority to waive an obligation, and has amended its agreements exactly once in thirty years.

In exam wording: Article IX of the Marrakesh Agreement Establishing the World Trade Organization provides for decision making by consensus, for voting where consensus is not reached, for the exclusive authority of the Ministerial Conference and General Council to adopt interpretations, and for waivers of obligations; Article X provides for amendment; and Article XV provides for withdrawal.

Article IX: consensus and voting

Article IX:1: the WTO shall continue the practice of decision making by consensus followed under GATT 1947. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. At meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote, and where the European Communities exercise their right to vote they shall have a number of votes equal to the number of their member States which are Members of the WTO. Decisions shall be taken by a majority of the votes cast, unless otherwise provided.

A footnote defines consensus: the body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.

Read that definition carefully, because two things follow.

Silence is consent. A Member that does not object has consented, and abstention does not block.

Absence is consent. Only a Member present at the meeting can object, so a Member that does not attend cannot prevent a decision.

And voting almost never happens. The practice is to negotiate until nobody objects, which is why the negotiating function has slowed as membership has grown.

Article IX:2: interpretations

Article IX:2: the Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. In the case of an interpretation of a Multilateral Trade Agreement in Annex 1, they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. The decision to adopt an interpretation shall be taken by a three fourths majority of the Members.

Two points a candidate should make.

Interpretation is exclusive to the political organs, not to panels. A panel interprets in deciding a dispute, but only the Ministerial Conference and General Council can adopt an authoritative interpretation binding for the future.

For a TRIPS interpretation the Council for TRIPS must recommend it first.

The power has never been used for TRIPS. The Doha Declaration on TRIPS and Public Health of 2001 was adopted as a Ministerial Declaration and not as an Article IX:2 interpretation, and whether it is nevertheless a subsequent agreement on interpretation under Article 31(3)(a) of the Vienna Convention on the Law of Treaties is a real question, worked in [The Doha Declaration on TRIPS and Public Health, 2001].

In one line

The original members joined by accepting the Agreement; everybody since has had to negotiate their way in, on terms agreed with the existing members, and the negotiation has no fixed rules and no time limit.

In exam wording: Articles XI to XIV and XVI of the Marrakesh Agreement Establishing the World Trade Organization govern original membership, accession by any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations on terms to be agreed between it and the WTO, the non application of the agreements between particular Members, acceptance and entry into force, and miscellaneous provisions including the requirement that Members ensure the conformity of their laws with their obligations.

Article XI: original membership

Article XI:1: the contracting parties to GATT 1947 as of the date of entry into force of this Agreement, and the European Communities, which accept this Agreement and the Multilateral Trade Agreements and for which Schedules of Concessions and Commitments are annexed to GATT 1994 and for which Schedules of Specific Commitments are annexed to the General Agreement on Trade in Services, shall become original Members of the WTO.

So original membership was open to the GATT contracting parties, and it required two things: acceptance of the whole package, and Schedules.

India was an original Member, having been a contracting party to GATT 1947 from the beginning.

Article XI:2 is the least developed country provision: the least developed countries recognised as such by the United Nations will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capabilities.

Article XII: accession

Article XII:1: any State or separate customs territory possessing full autonomy in the conduct of its external commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements may accede to this Agreement, on terms to be agreed between it and the WTO. Such accession shall apply to this Agreement and the Multilateral Trade Agreements annexed thereto.

Two features of that sentence decide everything about accession.

A separate customs territory may accede. It need not be a State, which is how Hong Kong, Macao and Chinese Taipei are Members, and it is a difference from WIPO, whose Convention admits only States and no separate customs territory at all.

Accession is on terms to be agreed. The Agreement lays down no criteria, no benchmark and no timetable, so the terms are whatever the existing Members and the applicant negotiate.

Article XII:2: decisions on accession shall be taken by the Ministerial Conference, which shall approve the agreement on the terms of accession by a two thirds majority of the Members.

In one line

The WTO makes global economic policy in three ways, by setting rules that constrain what governments may do, by adjudicating disputes about them, and by cooperating formally with the Fund and the Bank, and it is criticised for all three.

In exam wording: the World Trade Organization participates in global economic policy making through its rule making function, through the binding adjudication of disputes under the Dispute Settlement Understanding, and through the coherence mandate in Article III:5 of the Marrakesh Agreement requiring cooperation with the International Monetary Fund and the International Bank for Reconstruction and Development, the resulting influence being contested on grounds of democratic legitimacy, of the reach of its rules into domestic regulation, and of the imbalance of negotiating power among its Members.

The three mechanisms

1. Rules that bind domestic policy. A WTO agreement does not regulate trade at the border alone; it constrains what a government may do inside its own territory. GATT Article III reaches internal taxes and regulations; the Agreement on Sanitary and Phytosanitary Measures reaches food safety standards; the Agreement on Technical Barriers to Trade reaches product standards; the Agreement on Subsidies reaches industrial policy; and TRIPS reaches the whole of a Member's intellectual property law, including how long a patent lasts and what may be excluded from patentability.

That last point is the one that matters here. Before 1995 the term of an Indian patent was a matter for the Indian Parliament. After 1995 it is fixed by TRIPS Article 33 at not less than twenty years from filing.

2. Adjudication with consequences. The Dispute Settlement Understanding produces rulings that are adopted automatically by reverse consensus and that may be enforced by authorised suspension of concessions. No other economic institution has that.

3. The coherence mandate. Article III:5 of the Marrakesh Agreement provides that with a view to achieving greater coherence in global economic policy making, the WTO shall cooperate, as appropriate, with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies.

A Declaration on the Contribution of the World Trade Organization to Achieving Greater Coherence in Global Economic Policy Making was adopted at Marrakesh in 1994, and formal agreements between the WTO and each of the Fund and the Bank were concluded in 1996 and 1997.

What coherence means in practice is observer status at each other's meetings, staff level consultation, the exchange of information, and joint work: the Integrated Framework for trade related technical assistance to least developed countries, the Aid for Trade initiative launched at Hong Kong in 2005, and cooperation on trade finance.

Why the phrase is contested

MU set the phrase as a short note, and the note should say why the phrase is contentious.

In one line

The trading system treats developing countries differently through non reciprocity, preferential access, longer time limits and technical assistance, and the collective name for all of it is special and differential treatment.

In exam wording: the norms applicable to developing countries in the multilateral trading system comprise the non reciprocity principle in Part IV of GATT 1947, the Enabling Clause of 1979 permitting differential and more favourable treatment notwithstanding Article I, the special and differential treatment provisions distributed through the WTO agreements, the transitional periods in Articles 65 and 66 of TRIPS, and the technical cooperation and technology transfer obligations in Articles 66.2 and 67.

The four generations of the idea

First, nothing. GATT 1947 as originally drafted made no distinction, beyond Article XVIII on governmental assistance to economic development, which permitted a contracting party in the early stages of development to modify concessions and to apply quantitative restrictions for balance of payments purposes.

Second, non reciprocity. Part IV, Trade and Development, was added in 1965, comprising Articles XXXVI to XXXVIII. Article XXXVI:8 is the provision to quote: the developed contracting parties do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to the trade of less developed contracting parties.

Third, preferences. The Generalised System of Preferences was endorsed by the United Nations Conference on Trade and Development in 1968 and required a waiver from Article I, granted in 1971 for ten years. The Enabling Clause of 1979, formally the Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, made it permanent.

Fourth, special and differential treatment in the WTO agreements, which is where the idea now lives.

The Enabling Clause

Paragraph 1: notwithstanding the provisions of Article I of the General Agreement, contracting parties may accord differential and more favourable treatment to developing countries, without according such treatment to other contracting parties.

Paragraph 2 lists what it covers: preferential tariff treatment accorded by developed to developing countries in accordance with the Generalised System of Preferences; differential and more favourable treatment in respect of non tariff measures governed by multilaterally negotiated instruments; regional or global arrangements entered into amongst developing countries for the mutual reduction or elimination of tariffs and of non tariff measures on products imported from one another; and special treatment of the least developed countries in the context of any general or specific measures in favour of developing countries.

Paragraph 3 sets the conditions. Any such treatment shall be designed to facilitate and promote the trade of developing countries and not to raise barriers to or create undue difficulties for the trade of any other contracting parties; shall not constitute an impediment to the reduction or elimination of tariffs on a most favoured nation basis; and shall, in the case of treatment accorded by developed to developing countries, be designed and, if necessary, modified, to respond positively to the development, financial and trade needs of developing countries.

In one line

There are three kinds of agreement in the WTO system, and the difference between them is who is bound.

In exam wording: the agreements of the World Trade Organization comprise the Multilateral Trade Agreements in Annexes 1, 2 and 3 of the Marrakesh Agreement, which are integral parts of that Agreement and binding on all Members by Article II:2, and the Plurilateral Trade Agreements in Annex 4, which bind only those Members that have accepted them and create neither obligations nor rights for those that have not.

The four annexes

Annex 1A, Multilateral Agreements on Trade in Goods, containing GATT 1994 and twelve further agreements:

the Agreement on Agriculture;

the Agreement on the Application of Sanitary and Phytosanitary Measures;

the Agreement on Textiles and Clothing, which terminated itself on 1 January 2005 under its own Article 9;

the Agreement on Technical Barriers to Trade;

the Agreement on Trade-Related Investment Measures;

the Agreement on Implementation of Article VI of GATT 1994, that is the Anti Dumping Agreement;

the Agreement on Implementation of Article VII of GATT 1994, that is the Customs Valuation Agreement;

the Agreement on Preshipment Inspection;

the Agreement on Rules of Origin;

the Agreement on Import Licensing Procedures;

the Agreement on Subsidies and Countervailing Measures;

and the Agreement on Safeguards.

Two more have been added since. The Agreement on Trade Facilitation, adopted at Bali in 2013 and in force from 22 February 2017, and the Agreement on Fisheries Subsidies, adopted at Geneva in 2022 and in force from 15 September 2025, both inserted into Annex 1A by protocol.

Annex 1B, the General Agreement on Trade in Services, with its annexes on the movement of natural persons, financial services, telecommunications and air transport services.

Annex 1C, the Agreement on Trade-Related Aspects of Intellectual Property Rights.

Annex 2, the Understanding on Rules and Procedures Governing the Settlement of Disputes.

Annex 3, the Trade Policy Review Mechanism.

Annex 4, the Plurilateral Trade Agreements. Four were listed in 1994: the Agreement on Trade in Civil Aircraft, the Agreement on Government Procurement, the International Dairy Agreement and the International Bovine Meat Agreement. The last two were terminated at the end of 1997, so two remain.

What GATT 1994 actually is

Article II:4 of the Marrakesh Agreement provides that GATT 1994 is legally distinct from GATT 1947.

The instrument defining GATT 1994 provides that it consists of the provisions of GATT 1947 as rectified, amended or modified before the entry into force of the WTO Agreement; the provisions of the legal instruments that entered into force under GATT 1947 before that date, being protocols relating to tariff concessions, protocols of accession, decisions on waivers still in force, and other decisions of the CONTRACTING PARTIES; the six Understandings on Articles II:1(b), XVII, XII and XVIII:B, XXIV, waivers, and XXVIII; and the Marrakesh Protocol to GATT 1994, which carries the Schedules.

In one line

A WTO dispute runs consultations, panel, appeal, adoption, implementation and, if all else fails, authorised retaliation, and the reason it works is that a report is adopted unless everybody objects.

In exam wording: disputes under the WTO agreements, including TRIPS, are settled under the Understanding on Rules and Procedures Governing the Settlement of Disputes in Annex 2 of the Marrakesh Agreement, which provides for consultations, the establishment of a panel by the Dispute Settlement Body, panel proceedings and a report, appellate review on issues of law, adoption of reports by negative consensus, surveillance of implementation, and, where a Member fails to comply, compensation or the suspension of concessions or other obligations.

Why it is different from what went before

Under GATT 1947 a panel report had to be adopted by consensus. The losing party was present and could object, so it could block adoption of a report against it, and several important reports were never adopted.

The Understanding reversed the rule. A report is adopted unless the Dispute Settlement Body decides by consensus not to adopt it, which means every Member including the winning party would have to agree not to adopt. That is called negative or reverse consensus, and it makes adoption automatic in practice.

The same reversal applies at three points: the establishment of a panel under Article 6.1, the adoption of panel and Appellate Body reports under Articles 16.4 and 17.14, and the authorisation of retaliation under Article 22.6.

Article 23 forbids unilateralism. When Members seek the redress of a violation, they shall have recourse to and abide by the rules and procedures of this Understanding, and shall not make a determination that a violation has occurred except through it.

The stages

Stage one: consultations, Article 4. The complainant requests consultations in writing, giving reasons, identifying the measures and the legal basis. The respondent shall reply within ten days and enter into consultations within thirty days. If it does not, or if consultations fail to settle the dispute within sixty days, the complainant may request a panel.

Article 4.10 requires Members, during consultations, to give special attention to the particular problems and interests of developing country Members.

Article 5 offers good offices, conciliation and mediation, voluntary and confidential, available at any time and terminable at any time.

Stage two: the panel, Articles 6 to 16. The Dispute Settlement Body establishes a panel at the latest at the meeting following that at which the request first appears on the agenda, unless it decides by consensus not to establish one.

A panel has three members unless the parties agree within ten days to five, and they serve in their individual capacities. If there is no agreement on composition within twenty days, either party may ask the Director-General to appoint them.

In one line

Besides the panel route, the Understanding offers good offices, conciliation, mediation and arbitration, all voluntary, all confidential, and all available at any time.

In exam wording: apart from the panel and appellate procedure, the Dispute Settlement Understanding provides for consultations under Article 4, good offices, conciliation and mediation under Article 5, and arbitration under Article 25, to which must be added the arbitration on the reasonable period of time under Article 21.3(c), the arbitration on the level of suspension under Article 22.6, and the Multi-Party Interim Appeal Arbitration Arrangement of 2020.

Why there are other mechanisms at all

Article 3.7 states the preference. The aim of the mechanism is to secure a positive solution to a dispute, and a solution mutually acceptable to the parties and consistent with the covered agreements is clearly to be preferred.

So litigation is the fallback, not the object. Everything in this chapter exists because the Understanding would rather the parties settled.

Consultations, Article 4

The first mechanism and the most used. Every complaint must begin here, and a large proportion of matters never go further.

Article 4.3: the respondent shall reply to the request within ten days and enter into consultations in good faith within thirty days, with a view to reaching a mutually satisfactory solution. If it does not, the complainant may proceed directly to request a panel.

Article 4.7: if consultations fail to settle the dispute within sixty days, the complainant may request a panel, and it may request one earlier if both parties jointly consider that consultations have failed.

Article 4.10 requires special attention to the particular problems and interests of developing country Members.

Article 4.6: consultations are confidential and without prejudice to the rights of either party in further proceedings.

Good offices, conciliation and mediation, Article 5

One article, three procedures, and the Understanding does not define them. The distinction is one of degree, and a candidate should give it in these terms.

Good offices is a third party providing the channel and the venue so the parties can talk, without entering the substance.

Conciliation is a third party taking part in the discussions and helping the parties understand each other's positions.

Mediation is a third party going further and proposing terms of settlement, which the parties remain free to reject.

Article 5.1: all three are procedures that are undertaken voluntarily if the parties to the dispute so agree.

Article 5.2: proceedings, and in particular positions taken by the parties during them, shall be confidential, and without prejudice to the rights of either party in any further proceedings.

Article 5.3: they may be requested at any time by any party, may begin at any time and be terminated at any time. Once terminated, the complaining party may proceed with a request for a panel.

In one line

UNESCO runs a rival copyright convention and the cultural treaties, the International Labour Organization co-administers performers' rights, the Food and Agriculture Organization runs the plant genetic resources treaty, and the World Health Organization is where the argument about patents and medicines is actually conducted.

UNESCO

The United Nations Educational, Scientific and Cultural Organization is the second copyright organisation, and its instrument is the Universal Copyright Convention, signed at Geneva on 6 September 1952 and revised at Paris on 24 July 1971.

Why it exists. Berne demanded a high level of protection and, crucially, protection without formalities. The United States required registration and notice and a manufacturing clause, and the Soviet Union and much of Latin America were outside Berne. A convention was needed that those countries could join, and UNESCO built one.

Article I obliges each Contracting State to provide adequate and effective protection of the rights of authors and other copyright proprietors in literary, scientific and artistic works, including writings, musical, dramatic and cinematographic works, and paintings, engravings and sculpture.

Article II is national treatment for published works of nationals of any Contracting State and works first published in that State.

Article III is the famous one, and it is the copyright notice. A State whose domestic law requires formalities such as deposit, registration, notice, notarial certificates, fees or manufacture shall regard those requirements as satisfied for foreign works if, from the time of first publication, all copies bear the copyright symbol accompanied by the name of the copyright proprietor and the year of first publication, placed so as to give reasonable notice.

That single sentence is why the notice appears on the reverse of every book printed in the second half of the twentieth century.

Article IV.2 sets the term. Not less than the life of the author and twenty five years after death. Berne requires fifty. The lower floor was the price of a wider membership.

Article V makes translation an exclusive right, but permits a State to grant a compulsory translation licence after seven years if no authorised translation into a language in general use there has been published.

Articles Vbis, Vter and Vquater, added at Paris in 1971, let a State regarded as a developing country in conformity with the established practice of the General Assembly notify the Director-General and take further translation and reproduction exceptions, effective for ten year periods.

Article XI establishes an Intergovernmental Committee to study application and operation, prepare revisions, and cooperate with UNESCO, the Berne Union and the Organization of American States.

Article XVII and its Appendix Declaration are the safeguard clause, and they are what killed the Convention. Article XVII provides that the Convention shall not in any way affect the Berne Convention or membership in the Berne Union. The Appendix Declaration, an integral part of the Convention for States bound by Berne, provides that works whose country of origin is a country that has withdrawn from the Berne Union after 1 January 1951 shall not be protected by the Universal Copyright Convention in Berne Union countries, and that the Universal Copyright Convention does not apply between countries of the Berne Union to works whose country of origin is a Berne country.

In one line

WIPO makes intellectual property law and cannot enforce it, the WTO enforces intellectual property law and barely makes it, and since 1996 they have had a treaty telling each other so.

The objectives, side by side

WIPO, Article 3 of the Convention of 1967. The objectives of the Organization are, first, to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization, and second, to ensure administrative cooperation among the Unions.

Two objectives, and both are about protection. WIPO exists to raise protection and to run the Unions tidily. It is not asked to balance protection against anything.

The WTO, the preamble and Article II:1 of the Marrakesh Agreement. The parties recognise that trade and economic relations should be conducted with a view to raising standards of living, ensuring full employment, expanding production and trade in goods and services, allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, and ensuring that developing countries secure a share in the growth in international trade commensurate with the needs of their economic development. The Organization provides the common institutional framework for the conduct of trade relations among Members.

Note what is missing. Intellectual property is not a WTO objective at all. It is a subject matter of one of its annexes. Protection is a means to a trade end, which is exactly why TRIPS Article 7 speaks of a balance and the WIPO Convention does not.

The functions, side by side

WIPO, Article 4. It shall promote measures to facilitate efficient protection and to harmonize national legislation; shall perform the administrative tasks of the Paris Union, the Special Unions and the Berne Union; may agree to assume the administration of any other agreement designed to promote protection; shall encourage the conclusion of international agreements; shall offer legal-technical assistance to States requesting it; shall assemble and disseminate information and publish studies; and shall maintain services facilitating international protection and, where appropriate, provide for registration and publication of registration data.

The WTO, Article III. It shall facilitate the implementation, administration and operation of the Agreement and the Multilateral Trade Agreements and provide the framework for the Plurilateral ones; shall provide the forum for negotiations; shall administer the Dispute Settlement Understanding; shall administer the Trade Policy Review Mechanism; and, with a view to greater coherence in global economic policy-making, shall cooperate with the International Monetary Fund and the International Bank for Reconstruction and Development.

Put the two lists next to each other and the difference is visible. WIPO registers, harmonises, assists and publishes. The WTO negotiates, adjudicates, reviews and coordinates. Only one of them runs a court.

In one line

TRIPS is Annex 1C of the Marrakesh Agreement, it binds every WTO Member, and it is the first intellectual property treaty anyone can be made to obey.

In exam wording: the Agreement on Trade-Related Aspects of Intellectual Property Rights is Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, concluded on 15 April 1994 and in force from 1 January 1995. Being a Multilateral Trade Agreement under Article II:2 of that Agreement it is an integral part of it and binding on all Members, and by its own Article 64 it is enforceable through the Dispute Settlement Understanding.

The shape of the Agreement

Seventy three articles in seven Parts, and a candidate should be able to name the Parts.

Part I, general provisions and basic principles, Articles 1 to 8. Scope of obligations, the incorporated conventions, national treatment, most favoured nation, exhaustion, objectives and principles.

Part II, standards concerning the availability, scope and use of intellectual property rights, Articles 9 to 40, in eight Sections: copyright and related rights, trademarks, geographical indications, industrial designs, patents, layout designs of integrated circuits, protection of undisclosed information, and control of anti competitive practices in contractual licences.

Part III, enforcement of intellectual property rights, Articles 41 to 61, in five Sections: general obligations, civil and administrative procedures and remedies, provisional measures, special requirements related to border measures, and criminal procedures.

Part IV, acquisition and maintenance of intellectual property rights and related inter partes procedures, Article 62.

Part V, dispute prevention and settlement, Articles 63 and 64.

Part VI, transitional arrangements, Articles 65 to 67.

Part VII, institutional arrangements and final provisions, Articles 68 to 73.

What was new

Five things, and no earlier treaty had any of them.

Minimum standards across every field at once. Paris governed industrial property, Berne governed copyright, Rome governed neighbouring rights, and none of them touched the others. TRIPS covers seven categories in one instrument and, by Article 2.1 and Article 9.1, carries the older conventions inside itself.

Enforcement obligations. Part III requires Members to make procedures available, to give courts particular powers, to provide provisional measures, border measures and criminal penalties for wilful trademark counterfeiting and copyright piracy on a commercial scale. Paris and Berne said almost nothing about how a right was to be vindicated.

Most favoured nation. Article 4 puts a trade principle into intellectual property for the first time, so an advantage given to one country's nationals must be given to all.

Dispute settlement with consequences. Article 64 applies the Dispute Settlement Understanding, so a breach can be found by a panel and, on non compliance, retaliation can be authorised.

In one line

Give effect to it, you may go further, do it your own way, and intellectual property means the seven Sections of Part II.

Article 1.1, the three sentences

"Members shall give effect to the provisions of this Agreement." The obligation is one of result. Compliance is measured by whether the Member's law provides what the Agreement requires, not by whether it copies the words.

"Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement." This is the minimum standards rule. It has two limbs: more is permitted, and more is permitted only if it does not contravene the Agreement. The proviso matters, because a Member cannot use extra protection to defeat national treatment or most favoured nation.

"Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice." This is the freedom of method. A Member may implement by statute, by delegated legislation, by common law, or by a mixture, and a Member with a dualist constitution such as India is not required to make the Agreement directly effective.

Why the third sentence is the one India uses

India is a dualist State. A treaty does not become part of Indian law by ratification; Parliament must legislate under Article 253 of the Constitution.

So TRIPS is not directly enforceable in an Indian court. A litigant cannot sue on it. The Agreement takes effect in India through the Patents Act, the Copyright Act, the Trade Marks Act and the rest.

And Indian courts have said so. Where a party has argued that an Indian provision conflicts with TRIPS, the answer has been that the statute governs and the Agreement is at most an aid to construction.

Article 1.2, the definition

"For the purposes of this Agreement, the term intellectual property refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II."

Those seven Sections are: copyright and related rights; trademarks; geographical indications; industrial designs; patents; layout designs of integrated circuits; and protection of undisclosed information.

Section 8 is not in the definition, because Section 8 is control of anti competitive practices in contractual licences, which is not a category of intellectual property but a discipline on how the categories are licensed.

Why the definition matters. Every later obligation expressed in terms of intellectual property, including Article 3 national treatment, Article 4 most favoured nation, and the whole of Part III enforcement, is bounded by this list. Plant varieties are a good example: Article 27.3(b) requires their protection but there is no Section for them, so a plant variety right is not intellectual property for the purposes of the definition, though the obligation to protect is real.

In one line

Article 2.1 makes Paris Articles 1 to 12 and 19 binding on every WTO Member, and Article 2.2 says nothing in TRIPS cuts down what those four conventions already require.

Article 2.1

"In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967)."

Three things follow.

Paris now binds non parties. A WTO Member that never joined Paris must nonetheless comply with those Articles, and a breach is a breach of TRIPS, actionable before a panel.

The reference is to the Stockholm Act of 14 July 1967, as footnote 2 states, so it is the current substantive text and not an earlier Act.

The incorporation is partial and deliberate. Articles 1 to 12 are the substantive provisions and Article 19 preserves the right to make special agreements. Articles 13 to 18 and 20 to 30, being the administrative and final clauses on the Assembly, the International Bureau, finances, revision and disputes, are left out, because those govern the Paris Union and a WTO Member is not thereby made a member of the Union.

Article 6ter comes in with the rest, and that is why the 1995 agreement between WIPO and the WTO had to provide, in its Article 3, that the International Bureau administers the emblems procedures for WTO Members under the Paris Article 6ter machinery.

What Paris Articles 1 to 12 and 19 actually contain

Article 1: the Union, and the scope of industrial property.

Article 2: national treatment for nationals of Union countries.

Article 3: assimilation of certain categories of person.

Article 4: the right of priority, twelve months for patents and utility models, six for designs and marks.

Article 4bis: independence of patents obtained for the same invention in different countries.

Article 4ter: the inventor's right to be mentioned.

Article 4quater: patentability not to be refused because sale is restricted by domestic law.

Article 5: importation, failure to work, compulsory licences and the four year and three year time bars, plus marking and grace periods for fees.

Article 5bis to 5quinquies: grace period for fees, patents in international traffic, process patents on imported products, and industrial designs.

Article 6: independence of marks registered in different countries.

Article 6bis: well known marks.