TRIPS Agreement on Copyright: A Comprehensive Overview

The TRIPS Agreement was established as a response to the growing significance of intellectual property in global trade.

Before its inception, the protection and enforcement of IP rights varied significantly across countries.

This disparity often led to tensions in international economic relations. Hence, there was a pressing need for a standardised set of rules to bring order, predictability, and a structured mechanism to resolve disputes.

This article provides a comprehensive overview of “Trips agreement on copyright.”

Understanding the TRIPS Agreement 

The TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement stands as a landmark in the realm of intellectual property (IP) protection, particularly in areas intertwined with trade.

It is celebrated as a comprehensive blueprint for safeguarding intellectual property standards.

Notably, the TRIPS Agreement is the inaugural legal framework that holistically addresses every facet of intellectual property, fortified with a plethora of specific provisions.

The core tenets of the TRIPS Agreement revolve around three pivotal domains:

1. Setting the Standard: The Agreement mandates all member nations to adhere to a foundational benchmark for safeguarding Intellectual Property Rights (IPRs) across every IP category encapsulated within the Agreement.

It meticulously delineates each IP domain, elucidating key protective elements such as:

• The specific subject matter that warrants protection.
• The spectrum of rights that are conferred.
• Potential exceptions to these rights.
• The stipulated minimum duration for which protection is granted.

2. Enforcement Mechanisms: Beyond merely setting standards, the TRIPS Agreement delves deep into the domestic mechanisms and remedies tailored for the enforcement of intellectual property rights.

It lays down a comprehensive set of guidelines that are universally applicable to all actions aimed at IPR enforcement. The Agreement encompasses:

• Directives on civil and administrative procedures and remedies.
• Interim measures to safeguard rights.
• Specific requirements at borders to prevent IP infringements.
• Protocols for criminal proceedings. These provisions collectively ensure that rights holders are equipped with the necessary tools to effectively uphold and exercise their intellectual property rights.

3. Resolving Disputes: In the event of disagreements between WTO member states arising from the TRIPS Agreement’s stipulations, the Agreement provides a robust framework for dispute resolution.

Such conflicts are channeled through the WTO’s established dispute resolution mechanisms, ensuring a structured and fair process for addressing and resolving disagreements.

In essence, the TRIPS Agreement serves as a beacon, guiding nations in harmonising their intellectual property regimes, fostering innovation, and ensuring that trade in intellectual property remains equitable and just.

Key Features of TRIPS

• Establishment and Background: TRIPS came into force in 1995, following the establishment of the WTO. It was negotiated during the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) from 1986 to 1994.
• Coverage: The agreement sets minimum standards for the protection and utilisation of seven forms of intellectual property. These include trademarks, copyrights, geographical indications, patents, industrial designs, layout designs for integrated circuits, and undisclosed information or trade secrets.
• Applicability: All WTO member states are bound by the TRIPS Agreement. It integrates basic international trade principles concerning intellectual property, ensuring that members have the flexibility to achieve their domestic policy objectives.
• Balancing Interests: TRIPS acknowledges the need to balance the interests of IP holders with public health and economic development. It outlines permissible exceptions and limitations to achieve this equilibrium.
• Monitoring and Administration: The TRIPS Council is tasked with overseeing the agreement’s operation and ensuring compliance.

Understanding the Berne Convention’s Influence on the TRIPS Agreement

During the discussions in the Uruguay Round, it became evident that the Berne Convention largely offered satisfactory standards for copyright protection.

As a result, the consensus was to base the new standards on the existing protection level found in the Paris Act of 1971 of the Berne Convention.

This foundation is outlined in Article 9.1, which mandates Members to adhere to the core provisions of the Paris Act of 1971, specifically Articles 1 to 21 and its Appendix.

However, under the TRIPS Agreement, Members are neither granted rights nor bound by obligations related to the moral rights specified in Article 6bis of the Berne Convention.

These moral rights include the right to be recognised as the author and the right to oppose any derogatory actions that might tarnish the author’s reputation.

The referenced provisions of the Berne Convention address topics like the scope of protection, minimum protection duration, conferred rights, and acceptable limitations.

The Appendix provides provisions for developing nations to impose certain restrictions on translation and reproduction rights under specific circumstances.

Enhancements and Clarifications in the TRIPS Agreement on Copyright Standards

While the TRIPS Agreement mandates adherence to the foundational standards set by the Berne Convention, it also provides further clarity and introduces specific additions to these standards.

Protection Scope – Expressions Over Ideas (Article 9.2)

The TRIPS Agreement emphasises that copyright protection is designated for expressions rather than abstract concepts.

This means that while the tangible expression of an idea (like a written description) is protected, the underlying idea itself, along with procedures, operational methods, and mathematical concepts, is not subject to copyright.

Computer Programs as Literary Works (Article 10.1)

The TRIPS Agreement categorically states that computer programs, irrespective of being in source or object code, fall under the protection umbrella of literary works as per the Berne Convention (1971). This affirmation ensures:

• Computer programs are unequivocally protected by copyright.
• All Berne Convention provisions applicable to literary works extend to computer programs.
• The format of a program, be it source or object code, doesn’t influence its protection status.
• Only those limitations applicable to literary works can be imposed on computer programs.
• The standard protection duration of 50 years is applicable to computer programs, making them exempt from any shorter terms that might be relevant to photographic works or applied art pieces.

Databases and Their Protection (Article 10.2)

The TRIPS Agreement elucidates that databases, along with other compilations of data or material, qualify for copyright protection even if they encompass data that might not be inherently copyrightable.

For a database to be eligible for this protection, its content selection or arrangement must be deemed as intellectual creations. This provision:

• Ensures databases receive protection irrespective of their format, be it machine-readable or otherwise.
• Specifies that while the database structure is protected, the individual data or material within isn’t.
• Confirms that any existing copyright on the data or material remains unaffected.

Rental Rights for Computer Programs and Cinematographic Works (Article 11)

The TRIPS Agreement grants authors specific rights concerning the commercial rental of their copyrighted works, especially in the context of computer programs and, under certain conditions, cinematographic works.

Key takeaways from this provision include:

• Authors possess the exclusive right to authorise or prohibit the commercial rental of originals or copies of their works, particularly for computer programs.
• For cinematographic works, the exclusive rental right is contingent upon the “impairment test.” A Member can be exempted from this obligation unless the rental leads to widespread copying, which significantly undermines the exclusive reproduction right granted to authors and their successors.
• Concerning computer programs, the rental obligation is waived if the program isn’t the primary object of the rental.

Duration of Protection (Article 7(1) & Article 12)

• The primary rule, as derived from the Berne Convention and integrated into the TRIPS Agreement, stipulates that the protection term should span the author’s lifetime plus an additional 50 years posthumously.
• However, Article 7(1) does acknowledge exceptions, allowing for shorter terms in specific scenarios as detailed in its subsequent paragraphs (2 to 4).
• Article 12 of the TRIPS Agreement further elaborates on the duration of protection for works not based on the life of an individual. In such cases:
  • If the work has been authorised for publication, the protection term is set at a minimum of 50 years from the end of the calendar year of that publication.
  • If no authorised publication occurs within 50 years of the work’s creation, the protection extends for 50 years from the end of the calendar year when the work was made.

Limitations and Exceptions (Article 13)

• Article 13 mandates that any limitations or exceptions to exclusive rights must be:
  • Restricted to specific special cases.
  • Non-conflicting with the standard exploitation of the work.
  • Not causing unreasonable harm to the rightful interests of the copyright holder.
• This provision is overarching and applies to all permissible limitations and exceptions as outlined in the Berne Convention and its Appendix, both of which are integrated into the TRIPS Agreement.
• While the TRIPS Agreement allows for these limitations, it emphasises that they must be implemented in a manner that safeguards the legitimate interests of the copyright holder.

In essence, the TRIPS Agreement, by incorporating elements of the Berne Convention, ensures a balanced approach to copyright protection, considering both the rights of creators and the broader public interest.

Related Rights (Article 14)

Protection for Performers, Phonogram Producers, and Broadcasting Entities

1. Rights of Performers: Performers, when their performance is captured on a phonogram, have the right to prevent unauthorised acts. This includes:

• Unauthorised recording of their unfixed performance.
• Unauthorised reproduction of such recordings.
• Unauthorised broadcasting or public communication of their live performances.

2. Rights of Producers of Phonogram: Those who produce phonograms (sound recordings) have exclusive rights. They can:

• Authorise or prohibit the direct or indirect reproduction of their phonograms.

3. Rights of Broadcasting Organisations: Entities that broadcast content have the right to prevent unauthorised acts, such as:

• Unauthorised recording of their broadcasts.
• Unauthorised reproduction of such recordings.
• Unauthorised rebroadcasting of their content.
• Unauthorised public communication of their television broadcasts. If a Member does not grant these rights to broadcasting organisations, they must provide copyright owners of the broadcast content the ability to prevent these acts, in line with the Berne Convention (1971) provisions.

4. Application to Phonogram Producers: The guidelines set out in Article 11 for computer programs also apply to phonogram producers and other right holders in phonograms as per a Member’s law.

If a Member had a system for equitable remuneration for phonogram rentals in place as of 15 April 1994, they can maintain it, provided that renting phonograms doesn’t significantly impair the exclusive reproduction rights of right holders.

5. Duration of Protection: The protection granted to performers and phonogram producers under this Agreement lasts for a minimum of 50 years, calculated from the end of the calendar year in which the recording was made or the performance occurred.

For broadcasting organisations, the protection lasts for at least 20 years from the end of the calendar year of the broadcast.

6. Conditions and Limitations: Members can set conditions, limitations, exceptions, and reservations for the rights outlined in paragraphs 1, 2, and 3, as long as they align with the Rome Convention.

Additionally, the provisions of Article 18 of the Berne Convention (1971) apply to the rights of performers and phonogram producers in phonograms.

In essence, Article 14 of the TRIPS Agreement underscores the importance of safeguarding the rights of performers, phonogram producers, and broadcasting organisations, ensuring that their creative and commercial interests are protected in the evolving landscape of global trade and intellectual property. 

Key Provisions of the TRIPS Agreement Other than Copyright

The TRIPS Agreement, a cornerstone of international intellectual property regulations, mandates its member states to enforce robust intellectual property rights protections.

Here’s a breakdown of its key stipulations:

Trademarks

• Any sign capable of distinguishing the goods or services of one enterprise from those of other enterprises is eligible for trademark registration.
• The trademark owner has the exclusive right to prevent third parties from using identical or similar signs for products or services similar to those for which the trademark is registered.

Geographical Indications:

Geographical indications identify a good as originating from a particular place, where the quality, reputation, or other characteristics of the good are essentially attributable to its geographical origin.

Industrial Designs:

• Protection is provided for new or original industrial designs created independently.
• The right holder can prevent third parties from producing, selling, or importing articles bearing or embodying a design which is a copy of the protected design.

Patents

• A patent is an exclusive right granted for an invention. The patent owner has the right to prevent others from making, using, selling, or importing the invention.
• The basic criterion of patentability is subject to exceptions, including innovations that are against public order or morality.

Layout-Designs (Topographies) of Integrated Circuits

• Protection is provided for layout designs of integrated circuits.
• Importing, selling, or distributing a protected layout design, an integrated circuit in which a protected layout design is incorporated, or an article containing such a circuit is prohibited.

Protection of Undisclosed Information

• Trade secrets or undisclosed information must be protected.
• Members should prevent such information from being disclosed, acquired, or used by third parties without the consent of the person lawfully controlling it.

Control of Anti-Competitive Practices in Contractual Licenses:

• The Agreement acknowledges that some licensing practices or conditions pertaining to intellectual property rights could restrain competition and might have adverse effects on trade.
• Provisions are in place to prevent or control such practices.

Significance of TRIPS

The TRIPS Agreement has transformed the landscape of global trade by making IP protection an integral part of the multilateral trading system. It stands as one of the three main “pillars” of the WTO, with the other two being trade in goods and trade in services.

By standardising IP protection rules, TRIPS has fostered a more predictable and harmonious international trading environment.

What are the Disadvantages of the TRIPS Agreement?

• The TRIPS Agreement mandates high standards of patent protection, which can be restrictive.
• Prior to TRIPS, items like fertilisers, insecticides, and pharmaceuticals weren’t patent-protected, leading to more affordable food and medicines.
• The absence of copyright protection for informational products previously promoted education and technology transfer.
• Local imitative industries faced job losses due to stringent IP regulations.
• Generally, the Agreement led to increased prices, causing significant deadweight losses with minimal stimulation of local innovation.
• Traditional knowledge remains unprotected, leaving indigenous communities vulnerable.

What Benefits Does the TRIPS Agreement Offer?

• The TRIPS Agreement brought transparency to global IP policy.
• It bolstered WIPO’s existing international legal framework, which was already designed and overseen by them.
• The Agreement reduced trade conflicts over intellectual property by establishing a clear, rules-based framework for dispute resolution.
• It facilitated the acquisition and enforcement of intellectual property rights, providing a robust platform for trading knowledge products.
• Developing countries witnessed a surge in patent applications due to the Agreement.
• The TRIPS Agreement frames the IP system in terms of innovation, technology transfer, and public welfare, emphasising the balance between protection and societal benefit.

Conclusion

The TRIPS Agreement, a pivotal international agreement under the World Trade Organisation, seeks to harmonise the standards of protection for intellectual property rights globally.

It embodies the balance of rights, ensuring that while owners of copyright receive extensive protection, there are provisions to prevent abuse.

The agreement sets broad rules, encompassing aspects of protection ranging from copyright law to the Treaty on Intellectual Property in Respect of Integrated Circuits.

It emphasises the basic requirements for multilateral agreements, including Border Measures to tackle copyright infringement.

Furthermore, the agreement underscores the importance of provisional measures and the protection of performers.

The level of protection offered is comprehensive, ensuring adequate protection for all intellectual property facets.

Through this, the TRIPS Agreement aims to establish a cohesive framework that respects the rights of copyright owners while ensuring fair access and use of intellectual creations.

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