TRIPS Article 63: Transparency

In one line

Every law, regulation, final judicial decision and administrative ruling of general application on intellectual property must be published, notified to the Council for TRIPS and supplied on request, subject to a confidentiality exception.

Why transparency is in Part V

Because Part V is called dispute prevention and settlement, and Article 63 is the prevention half.

The logic is simple. Most disputes about another Member's intellectual property regime arise from not knowing what it says. A published and notified law can be examined in the Council, questioned, and if necessary changed before anyone files a complaint.

Article 63.1, publication

Laws and regulations, and final judicial decisions and administrative rulings of general application, made effective by a Member pertaining to the subject matter of this Agreement shall be published, or where publication is not practicable made publicly available, in a national language, in such a manner as to enable governments and right holders to become acquainted with them.

The subject matter is defined in the article itself, in parentheses: the availability, scope, acquisition, enforcement and prevention of the abuse of intellectual property rights.

Four categories must be published. Laws; regulations; final judicial decisions of general application; and administrative rulings of general application. A decision between two parties on its own facts is not of general application.

And agreements between governments. Agreements concerning the subject matter of the Agreement which are in force between the government or a governmental agency of a Member and the government or a governmental agency of another Member shall also be published.

That last sentence matters more now than in 1995, because it reaches the intellectual property chapters of bilateral arrangements between governments.

Article 63.2, notification

Members shall notify the laws and regulations referred to in paragraph 1 to the Council for TRIPS in order to assist that Council in its review of the operation of this Agreement.

Two mitigations follow. The Council shall attempt to minimise the burden; and it may waive the obligation to notify directly if consultations with WIPO on establishing a common register are successful.

That is why the WIPO and WTO agreement of 22 December 1995 exists. Its Article 2 provides for the International Bureau to supply the WTO Secretariat with copies of laws a Member has already communicated to WIPO, and for the WTO Secretariat to transmit to WIPO the laws it receives under Article 63.2. The common register was never established, but the exchange arrangement is what Article 63.2 contemplated.

The Council shall also consider any action required regarding notifications under Paris Article 6ter, which is the emblems machinery, and this is the second link to the 1995 agreement, whose Article 3 puts that machinery in WIPO's hands.