Dr. Yang Guohua, Department of Law and Law, MOFTEC.
I. Background
Before the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), there were already some conventions on international protection of intellectual property rights, such as Paris Convention (industrial property rights), Berne Convention (copyright), Rome Convention (neighboring rights) and the Treaty on Intellectual Property Rights of Integrated Circuits.
But most exporters of intellectual property products are not satisfied with the existing conventions. They believe that the Paris Convention does not stipulate the minimum protection period of patents; There is no special international treaty to protect trade secrets; International protection of computer software and sound recordings should be strengthened; The existing conventions are not enough to deal with counterfeit goods. In addition, they also called for the establishment of an effective dispute settlement mechanism to deal with issues related to intellectual property rights.
1947 GATT also involves intellectual property rights. Theoretically, GATT's national treatment (Article 3), the treatment of the most stupid country (Article 1), transparency (Article 10) and loss or damage of interests (Article 23) can all be applied to the protection of intellectual property rights. However, the terms and contents of direct reference to intellectual property rights in GATT are very limited, and only the mark of origin (Article 9) requires the contracting parties to stop abusing the mark of origin; The use of quotas for balance of payments purposes shall not violate the intellectual property law (Article 12, paragraph 3, Article 18, Article 10); The general exception (article 20, paragraph 4) stipulates that measures to protect intellectual property rights should be non-discriminatory. It can be said that GATT has no clear rules for intellectual property protection.
The intellectual property issues involved in GATT are mainly the trade of counterfeit goods. Negotiations on this issue began in the Tokyo Round, and the United States proposed a draft guideline on this issue, but failed to reach an agreement. The issue of counterfeit goods trade was first put on the agenda of GATT in June, 1982, 1 1. Ministers asked the Council to decide whether it is appropriate to take joint action to crack down on counterfeit goods trade within the framework of GATT. If so, what action should be taken. 1985, the expert group established by the Council concluded that the fake trade is getting worse and worse, and multilateral action should be taken. However, there is a great controversy about whether GATT is the appropriate place to solve this problem, forming two completely opposite camps of developed and developing countries.
Developed countries such as the United States and Switzerland advocate the inclusion of intellectual property rights in multilateral negotiations. The representative of the United States even suggested that the United States would refuse to participate in the eighth round of negotiations if intellectual property rights were not taken as a new topic. In addition, developed countries also advocate formulating standards to protect all intellectual property rights, which must be protected through the WTO dispute settlement mechanism.
Developing countries represented by India, Brazil, Egypt, Argentina and Yugoslavia believe that the protection of intellectual property rights is the task of the World Intellectual Property Organization. We should distinguish between stopping the trade in counterfeit goods and extensive intellectual property protection. Developing countries are worried that the protection of intellectual property rights will pose obstacles to legitimate trade; Strengthening the protection of intellectual property rights is conducive to the monopoly of multinational corporations, raising the prices of drugs and food, thus adversely affecting public welfare.
Until 1986 Uruguay Round negotiations officially began, countries did not reach an agreement on whether to include intellectual property rights in the negotiations. Therefore, from the political and technical point of view, the issue of intellectual property rights is one of the most difficult issues in the Uruguay Round negotiations.
199 1 year, the Director-General of GATT put forward the framework of the draft Final Act of Uruguay Round, which basically adopted the Agreement on Trade-related Aspects of Intellectual Property Rights (including trade in counterfeit goods). Since this agreement undoubtedly includes the trade of counterfeit goods, this concept does not appear in the final title of the agreement.
The main reasons why developing countries accept intellectual property agreements are as follows: (1) As a package agreement, the Uruguay Round Agreement contains some things that developing countries want, such as the return of textile agreements, service trade agreements, and strengthening dispute settlement mechanisms. Therefore, accepting the intellectual property agreement is an exchange; (2) Since 1980s, many developing countries have introduced a large amount of foreign capital, demanding to strengthen the protection of intellectual property rights; (3) Unilateral threats from the United States and other countries, developed countries agree to give developing countries a longer transition period, and worry that the US Congress will not approve the package agreement because there is no intellectual property agreement. , also played a role.
Second, status.
Intellectual property agreement has special significance in WTO: (1) It is different from multilateral agreements on trade in goods and services; The first two agreements are agreements on general rules and principles of trade policies, which promise the liberalization of countries, but do not seek the coordination and unification of national policies; The intellectual property agreement includes the minimum standards of intellectual property protection that all members must meet. (2) The Agreement on Intellectual Property Rights requires all members to take active actions to protect intellectual property rights, which is different from the policy of restricting members in the first two agreements. This proves that it is possible to seek coordination under the multilateral trade framework, that is, to formulate minimum standards to influence trade policies and management systems.
The formation of intellectual property agreements is obvious to the interests of developed countries. For example, the pharmaceutical industry, entertainment industry and information industry in the United States have basically got what they expected when the negotiations started, because the intellectual property agreement is an agreement with substantive obligations and few loopholes; It sets the minimum standards for the protection of intellectual property rights and the obligation to implement these standards, and establishes an effective multilateral dispute settlement procedure.
The impact of intellectual property agreements on developing countries is still unclear. Some people have come to the conclusion that this agreement will make wealth flow from developing countries to developed countries. However, more people believe that intellectual property protection is closely related to economic development and international trade, and strengthening protection is the general trend. After overcoming short-term difficulties, developing countries will eventually benefit from intellectual property protection.