I general principles and basic principles
This part is ***8.
Members shall implement the provisions of the Agreement on Intellectual Property Rights and may determine appropriate methods for implementing the Agreement in their respective legal systems and practices; As long as it does not violate the provisions of the Agreement, members can also implement broader protection in their laws than that required by the Agreement, but this is not an obligation.
Members' implementation of the provisions of the Agreement on Intellectual Property Rights shall not prejudice their obligations under the Paris Convention, the Berne Convention, the Rome Convention and the Convention on Intellectual Property Rights of Integrated Circuits.
The Agreement on Intellectual Property Rights also stipulates that members shall abide by the following basic principles:
(A) the principle of national treatment
With regard to the protection of intellectual property rights, the treatment given by a member to the nationals of other members shall not be less than that given to its own nationals, except as otherwise provided by the Paris Convention, the Berne Convention, the Rome Convention and the Convention on Intellectual Property Rights of Integrated Circuits. The national treatment given to performers, producers of phonograms and the media only applies to the rights stipulated in the Agreement on Intellectual Property Rights. Certain judicial and administrative procedures may also be exceptions to national treatment.
In view of the fact that the "members" of the WTO can be the governments of sovereign countries or the separate General Administration of Customs, the term "nationals" is specifically noted in the Agreement on Intellectual Property Rights. When a WTO member is a separate customs territory, it should be regarded as a person-a natural person or a legal person-who has a domicile or an effective industrial and commercial institution there. When WTO members are sovereign governments, "nationals" should be understood as "natural persons and/or legal persons who meet the protection standards listed in Paris Convention, Berne Convention, Rome Convention and Convention on Intellectual Property of Integrated Circuits and are nationals of these treaty members and all WTO members". Therefore, the term "country" in the Agreement on Intellectual Property Rights applies not only to the members of the above-mentioned conventions, but also to the members of the WTO. In this way, the separate customs territory in the WTO can solve the international protection problem of intellectual property rights of its own nationals according to the principle of national treatment in the Agreement on Intellectual Property Rights without joining the above four international conventions open only to sovereign countries. This is very beneficial to the international protection of intellectual property rights of natural persons and legal persons in Hongkong, Macau and Taiwan Province Province.
The principle of most-favored-nation treatment
In the protection of intellectual property rights, the preferences, privileges or immunities provided by a member to a third country shall be immediately and unconditionally granted to the nationals of other members. But there are many exceptions to this principle, which are embodied in:
1. Preferences of international agreements on judicial assistance or law enforcement. However, this kind of preferential treatment is not specifically aimed at intellectual property protection, but a general preferential treatment.
2. Reciprocal protection in Berne Convention and Rome Convention.
3. The rights of performers, producers of phonograms and media not stipulated in the Intellectual Property Agreement.
4. Prior to the entry into force of the intellectual property agreement, existing preferential treatment, etc.
There is also a general exception to the principle of most-favoured-nation treatment and the principle of 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 the acquisition or maintenance of intellectual property rights.
(3) The principle of exhaustion of rights.
The so-called "exhaustion doctrine" means that once the owner of the intellectual property contained in a product sells the product, he loses (exhausts) the subsequent circulation right of the product in a specific market, that is, he can't control whether the seller sells the product in that market again.
The Agreement on Intellectual Property Rights does not allow member countries to use the relevant provisions of the Agreement to deal with intellectual property issues on the principle of exhaustion of rights when resolving intellectual property disputes between them.
(4) Other principles
The protection and exercise of intellectual property rights should help to promote technological innovation, transfer and dissemination, promote mutual benefit between producers and users of technological knowledge, enhance social and economic welfare, and maintain a balance between rights and obligations.
When formulating or amending domestic laws and regulations, members may take necessary measures to protect public health and nutrition and safeguard public interests in important fields such as social, economic and technological development. Members may take appropriate measures to prevent intellectual property rights holders from abusing intellectual property rights or unreasonably restricting trade and international technology transfer.
According to these two principles, developing country members can restrict multinational companies from abusing intellectual property rights in technology transfer or adopting unfair competition means in international technology transfer in their own intellectual property legislation or related laws (such as technology import regulations) to safeguard their own economic and trade interests.
Two. Standards on the effectiveness, scope and use of intellectual property rights
Articles 9 to 40 of the Agreement on Intellectual Property Rights stipulate the effectiveness, scope and use standards of seven categories of intellectual property rights.
(1) Copyright and related rights
Copyright refers to the author's legal rights to his literary, artistic and scientific works.
In a narrow sense, copyright includes personal rights and property rights of works. Personal rights of works, also known as "spiritual rights", refer to the right of authors to have their copyright recognized by people and to prevent their works from being distorted or destructively tampered with. Specifically, it includes: (1) the right to decide whether the work is public; (2) the right of signature indicating the identity of the author and signing the work; (3) the right to modify or authorize others to modify the work; (4) the right to protect the integrity of a work from distortion, tampering or other changes or impairments. The property rights of works include: (1) reproduction right and distribution right; (2) the right to perform; (3) the right to play; (4) the right to display; (5) the right of adaptation and video recording; (6) the right to translation; (seven) the right to comment and arrange; (8) Editorial power; (9) Property rights of other works.
Copyright in a broad sense includes not only personal rights and property rights of works, but also rights related to works (also called neighboring rights of works).
The scope of protection of copyright and related rights in the Intellectual Property Agreement is:
1. The "literature and art" referred to in the Berne Convention includes all works in the fields of literature, science and art (regardless of their forms or expressions), such as books, speeches, plays, dances, lyrics, movies, maps, etc.
2. Compilation of computer programs and data.
3. Performers, record producers and the media.
The copyright protection period shall be no less than 50 years from the end of the calendar year in which the work is authorized to be published (or completed); The rights of performers and record producers should be protected for at least 50 years; Media rights should be protected for at least 20 years.
(2) Trademarks
Trademark refers to the mark or combination of marks that distinguish the products or services of an enterprise from those of other enterprises. These marks include names, letters, numbers, patterns, color combinations and so on.
The owner of a registered trademark enjoys exclusive rights to prevent all third parties from using the same or similar marks as the registered trademark to mark the same or similar goods in the course of trade without the consent of the owner.
Well-known trademarks should be specially protected. When identifying a well-known trademark, we should consider the public's understanding of the trademark, including the popularity gained in the member region due to promotion.
The first registration and each renewal period of a trademark shall not be less than 7 years. Trademark registration should be renewable indefinitely. If the trademark registration is revoked on the grounds that the trademark has not been used, the condition is that the trademark has not been used for three consecutive years.
The trademark owner may transfer or license the use of the trademark, and has the right to transfer the trademark at the same time or at different times with the business to which the trademark belongs.
(2) Geographical indications
Geographical indications are used to indicate that a commodity originated in a member's territory or came from a certain region or place in the member's territory, and the specific quality, reputation or other characteristics of the commodity are essentially attributed to geographical sources.
As can be seen from the definition, geographical indications include three possible ways: 1. The territory of the contracting party, such as French perfume; 2. A region in China, such as rice in the northeast of China; 3. Places in a certain area, such as Lushan Yunwu Tea.
According to the Agreement on Intellectual Property Rights, members should provide protection for geographical indications, including refusing to register trademarks containing false geographical indications or declaring the registration invalid, so as to prevent the public from misunderstanding the true source of goods or unfair competition.
The Agreement on Intellectual Property Rights provides stricter protection for geographical indications of wine and spirits. The agreement stipulates that members should take measures to prevent the use of geographical indications for wine and spirits from being used for wines and spirits originating in other places.
(3) Industrial design
Industrial design in the Agreement on Intellectual Property Rights refers to industrial design, that is, a new design with aesthetic feeling and suitable for industrial application for the shape, pattern, color or combination of products.
Owners of protected industrial designs have the right to prevent unauthorized third parties from manufacturing, selling or importing textiles with protected designs for commercial purposes. The protection period of industrial design shall be no less than 10 years.
Textile design is paid special attention to because of its short cycle, large quantity and easy replication. According to the Agreement on Intellectual Property Rights, the conditions set for the protection of textile industrial designs, especially in terms of fees, examination and publication, shall not affect the protection of these designs.
(5) patents
Any invention in all technical fields, whether it is a product invention or a method invention, can apply for a patent as long as it is novel and creative and suitable for industrial application. However, if some product inventions or method inventions will adversely affect public order or public morality, including serious damage to the lives and health of many people, animals and plants or the environment, members may not grant patents. In addition, methods of diagnosis, treatment and surgery for human beings or animals, artificial propagation methods for animals and plants other than microorganisms, and artificial propagation methods for abiotic and microbial animals and plants are not allowed. However, for new plant varieties, if patent application is not allowed, they must be effectively protected by other means.
The patent owner has exclusive rights to the patent. For products, the patent owner has the right to prevent unauthorized third parties from manufacturing, using, selling or importing products for the above purposes; As far as the method is concerned, the patentee has the right to prevent unauthorized third parties from using the method and to use, sell or import the products directly obtained by the method for the above purposes. The protection period of a patent is from the date of filing an application and should last at least 20 years.
The laws of each member may stipulate that under special circumstances, the patent may be used without the authorization of the patentee (including government use or authorization of others), that is, compulsory license or involuntary license. However, this kind of use must have strict conditions and restrictions, such as asking for authorization on reasonable commercial terms and failing to succeed, and paying reasonable remuneration.
(VI) Layout design of integrated circuits (topology diagram)
Integrated circuit refers to an intermediate product or final product in which two or more components (at least one of which is an active component) are partially or completely integrated in or on a semiconductor material as a substrate to perform some electronic function.
A layout design is a three-dimensional configuration in which only two or more elements (at least one of which is an active element) in an integrated circuit are partially or completely interconnected, or the above three-dimensional configuration is prepared for manufacturing an integrated circuit.
Members shall prohibit the following acts without the permission of the obligee: importing, selling or otherwise distributing protected layout-designs for commercial purposes; Import, sell or otherwise distribute integrated circuits containing protected layout designs for commercial purposes; Import, sell or otherwise distribute articles containing the above integrated circuits for commercial purposes. In addition, if the parties do not know or should not know that the goods contain illegally copied layout-designs, their actions shall not be regarded as illegal. However, if he sells the surplus goods after being informed of the infringement, he has the responsibility to pay reasonable fees to the obligee.
The protection period of integrated circuit layout design is at least 10 years.
(7) Protecting undisclosed information
Unpublished information includes trade secrets and unpublished experimental data. As a classification of intellectual property rights, trade secrets have never appeared in previous international conventions.
The undisclosed information protected by intellectual property agreement needs to meet three conditions: (1) is confidential; (2) It has commercial value because of confidentiality; (3) Reasonable confidentiality measures have been taken.
The person who legally owns the information has the right to prevent others from disclosing, obtaining or using the information in a way that violates honest business practices without permission. "Violation of honest business conduct" refers to breach of contract or breach of trust. Confidential information submitted to the government for obtaining the marketing license of drugs or pesticides is also protected to prevent unfair commercial use.
(eight) the control of the behavior of restricting competition in the licensing contract.
Acts restricting competition in international technology licensing contracts may have a negative impact on trade and may hinder the transfer and dissemination of technology, such as compulsory blanket licensing. Members can take appropriate measures to prevent or control these behaviors, and relevant members can also hold consultations on ongoing anti-competitive behaviors and lawsuits, and cooperate effectively in controlling these behaviors.
Three. Acquisition and maintenance of intellectual property rights and related procedures
1. One of the conditions for members to claim or maintain the intellectual property rights referred to in the Agreement on Intellectual Property Rights is to perform reasonable procedures and formalities in accordance with the provisions of the Agreement.
2. Members shall ensure that relevant intellectual property rights are granted or registered within a reasonable time under the condition of meeting the substantive conditions for obtaining rights, so as to avoid unreasonably shortening the protection period.
3. The provisions of the Paris Convention on trademark registration also apply to service trademarks.
4. The relevant procedures for obtaining or maintaining intellectual property rights, as well as the procedures for administrative revocation and related objections, revocation and cancellation in the laws of member countries, should follow the general principles stipulated in the Agreement on Intellectual Property Rights.
5. Under normal circumstances, the final administrative ruling made according to any of the above procedures must be reviewed by judicial or quasi-judicial institutions. However, if the objection or administrative revocation is not established, as long as the reasons for exercising this procedure can be handled in accordance with the invalid litigation procedure, members are not obliged to provide an opportunity for reconsideration of this administrative ruling.
Four. Prevention and settlement of disputes
The laws and regulations implemented by members related to the contents of the Intellectual Property Agreement, as well as the universally applicable final judicial judgments and administrative rulings, shall be published in their own languages and notified to the Intellectual Property Council in a timely manner.
According to the agreement between the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), a member's notification of legislation to one organization is regarded as notification to another organization, and it is unnecessary to perform the notification obligation repeatedly.
Disputes arising from the implementation of the Agreement on Intellectual Property Rights shall be governed by the WTO dispute settlement mechanism.
Verb (abbreviation of verb) transitional arrangement
The Agreement on Intellectual Property Rights provides for a transitional period.
The transition period of developed countries is 1 year, and it will be fully implemented from 1996 65438+ 10 1.
Developing country members have an additional four-year transition period before most of the intellectual property provisions of the agreement except national treatment and most-favored-nation treatment come into effect, which lasts until June 65438+ 10/2000. However, they must abide by the requirement of maintaining the status quo, that is, during the transition period, they cannot change their laws on intellectual property rights in any way that leads to greater inconsistency with the Agreement on Intellectual Property Rights. Those developing country members who extend product patent protection to technical fields that are not currently regarded as protection objects according to the requirements of the Agreement on Intellectual Property Rights can also get another five-year transition period, that is, they can not comply with the provisions of the Agreement on Intellectual Property Rights before 2005 1.
If members from countries with economies in transition are still carrying out the structural reform of their intellectual property system and encounter special difficulties, they can also be granted a four-year transition period in the implementation of the Agreement on Intellectual Property Rights until June 65438+ 10 1.
Least developed country members have the longest transition period. When fulfilling their obligations under the Agreement on Intellectual Property Rights, they enjoy a transition period of 1 1 year until 1 year in 2006. This period can also be extended at the "legitimate request" of the least developed country members.
Other clauses of intransitive verbs
The WTO established the Council for Trade-related Intellectual Property Rights to supervise the implementation of the Agreement on Intellectual Property Rights, especially to supervise all members to fulfill their obligations under the Agreement, and to provide opportunities for members to negotiate trade-related intellectual property rights issues.