The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) can be said to be an international convention with wide coverage, high level of protection, strong protection and strong restrictions in the field of intellectual property protection worldwide.
TRIPS divides the existing international conventions on intellectual property into three categories: ① international conventions that are basically completely affirmed and require all members to abide by and implement. There are four such international conventions: the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations and the Treaty on Intellectual Property of Integrated Circuits. TRIPS has revised and reserved some provisions of these four international conventions, requiring all WTO members to abide by and implement the above four conventions. ② There are more than ten international conventions that are basically and completely affirmed and require all members to implement according to the principle of reciprocity, mainly the sub-conventions of the Paris Convention. (3) International conventions that all members are not required to abide by and implement. International conventions that are not mentioned in TRIPS and do not belong to the above two categories do not require all members to abide by and implement them, mainly including the universal copyright convention and the Phonograms Convention.
TRIPS agreement covers a wide range, involving almost all fields of intellectual property rights, and extends the principles and regulations on tangible goods trade in GATT and WTO to the field of intellectual property protection. It not only strengthens the enforcement procedures and protection measures of intellectual property rights, but also strengthens the enforcement measures and dispute settlement mechanism of the agreement, closely combines the implementation of the agreement on the protection of intellectual property rights with trade sanctions, and at the same time establishes the Council for Trade-related Intellectual Property Rights as a permanent institution to supervise the implementation of this agreement. (The objectives, general provisions and basic principles of the TRIPS Agreement.
1. target
The preamble of TRIPS Agreement states the objectives of the Agreement: in order to reduce distortions and obstacles in international trade, it is necessary to promote adequate and effective protection of intellectual property rights and ensure that measures and procedures for implementing intellectual property rights will not become obstacles to legitimate trade.
2. General provisions and basic principles
(1) Scope of intellectual property rights
TRIPS agreement stipulates that the scope of intellectual property rights is: copyright and neighboring rights; Trademark right; Right to geographical indications; Industrial product design right; Patent right; Layout design right of integrated circuit (topology diagram); Exclusive right to undisclosed information.
(2) Relationship with other intellectual property conventions
The provisions of the TRIPS Agreement shall not prejudice the obligations of members under the Paris Convention, Berne Convention, Rome Convention and the Treaty on Intellectual Property of Integrated Circuits.
(3) the principle of national treatment
In the protection of intellectual property rights, each member shall provide the nationals of other members with treatment no less favourable than that of its own nationals. However, Paris Convention, Berne Convention, Rome Convention and the Treaty on Intellectual Property of Integrated Circuits allow the principle of reciprocity to replace the principle of national treatment in some cases. For performers, record producers and broadcasting organizations, national treatment only applies to the rights stipulated in this agreement; Some judicial and administrative procedures, such as the need to specify a service address or entrust an agent within the jurisdiction of a member, can also be exceptions to national treatment.
(4) the most-favored-nation treatment principle
In terms of intellectual property protection, any benefits, preferences, privileges or immunities provided by a member to nationals of other countries shall be immediately and unconditionally applied to nationals of all other members. It is the creation of WTO to introduce the most-favored-nation treatment principle into the international protection of intellectual property rights. Perhaps because of this, there are more exceptions to this principle, that is, preferential treatment from international agreements on judicial assistance or law enforcement in general but not specifically for intellectual property protection; Reciprocal protection in Berne Convention and Rome Convention: the rights of performers, producers of phonograms and broadcasting organizations not stipulated in this agreement; Preferences arising from intellectual property agreements before the establishment of the WTO.
There is also a general exception to MFN treatment and national treatment, that is, these two principles do not apply to the procedures stipulated in multilateral agreements concluded under the auspices of the World Intellectual Property Organization on obtaining or maintaining intellectual property rights.
(5) Other principles
The goal of intellectual property protection is to promote technological innovation, technology transfer and technology dissemination, promote mutual benefit between producers and users of technological knowledge in a way conducive to social and economic welfare, and promote the balance of rights and obligations; Members may take necessary measures to protect public health and development when formulating or revising their domestic laws and regulations, so as to increase public welfare in areas vital to their socio-economic and technological development; Members may take appropriate measures to prevent right holders from abusing intellectual property rights and resorting to unreasonable trade restrictions in international technology transfer. (3) the effectiveness, scope and standards for the use of relevant intellectual property rights
1. Copyright and neighboring rights shall comply with the Berne Convention. The scope of copyright and neighboring rights includes:
(1) The "literature and art" referred to in the Berne Convention refers to all works in the fields of literature, science and art, regardless of their forms or ways of expression, such as books, speeches, plays, dances, lyrics, movies, pictures, photographic works and maps.
(2) Compiling computer programs and data.
(3) Performers and recording systems