Course : Law in International Business
Lecturer : Dr. Shidarta, S.H., M.Hum.
Date : 7 May 2013 (Session 8)
Topic : Trade Related Aspects of Intellectual Property Rights (TRIPs)
Method : F2F (Face to face)
Background :
·
TRIPs
= Trade
Related Aspects of Intellectual Property Rights
·
The birth of the TRIPs agreement in the Uruguay Round [GATT],
in essence, is the impact intrenasional trading conditions increasingly widespread and knows no national
boundaries.
·
State who first proposed the birth of
TRIPs is the
United States, in anticipation of the opinion that the WIPO
[World Intellectual Property
Organization] under the UN,
is not capable of protecting IPRs in the
international market which will result in a
negative trade.
The World Intellectual Property
Organization (WIPO) is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative
activity, to promote the protection of intellectual property throughout the
world.
What is WIPO?
WIPO mission is to promote innovation and
creativity for the economic, social and cultural development of all
countries, through a balanced and effective international intellectual
property system.
WIPO promote the development and use of the international IP
system through:
|
WIPO weaknesses are:
1.
WIPO is an organization where members are limited [not
much], so that the WIPO provisions can not be enforced against non-members of
WIPO.
2.
WIPO does not have a mechanism to resolve and punish
any violation of IPR.
3.
Besides that WIPO could no longer adapt changes in the
structure of international trade and changes in the level of technological
invasion.
The purpose of TRIPs :
ü Increased protection
of IPR of products
traded
ü Ensure the implementation
of the IPR procedures that do not impede trade
ü Formulate the
rules and discipline of the
implementation of the protection of
IPR
ü Develop the
principles, rules and mechanisms for international cooperation to
deal with trafficking counterfeit goods or
piracy results on
IPR
TRIPs Principles :
o Free to Determine
o Intellectual Property
Convention
o National Treatment
o Most-Favored-Nation-Treatment
o Exhaustion
The requirements of TRIPS :
TRIPS
requires member states to provide strong protection for intellectual property
rights. For example, under TRIPS:
- Copyright terms must extend at least 50 years,
unless based on the life of the author.
- Copyright must be granted automatically, and not
based upon any "formality," such as registrations, as specified
in the Berne Convention.
- Computer programs must be regarded as
"literary works" under copyright law and receive the same terms
of protection.
- National exceptions to copyright (such
as "fair use" in the United States) are constrained by
the Berne three-step test
- Patents must be granted for
"inventions" in all "fields of technology" provided
they meet all other patentability requirements (although exceptions for
certain public interests are allowed and must be enforceable for at least
20 years.
- Exceptions to exclusive rights must be limited,
provided that a normal exploitation of the work and normal exploitation of
the patent is not in conflict.
- No unreasonable prejudice to the legitimate
interests of the right holders of computer programs and patents is
allowed.
- Legitimate interests of third parties have to be
taken into account by patent rights.
- In each state, intellectual property laws may not
offer any benefits to local citizens which are not available to citizens
of other TRIPS signatories under the principle of national treatment. TRIPS also has a most favored nation clause.
Many of the TRIPS provisions on copyright were copied
from the Berne Convention for the Protection of Literary and Artistic Works and many of its trademark and patent provisions were modeled on the Paris Convention for the Protection of Industrial Property.
Intellectual property rights
Property arising
and birth because of intelectual capabilities [or if brain think] human
Right to enjoy the economics result of an intellectual human creativity without interference from other parties.
Intellectual property rights :
ü Copyright and Related Rights
ü Industrial Property :
§ Patent
§ Trademark
§ Geographical Indication
§ Industrial Design
§ Layout Design of Integrated Circuit
§ Trade Secret
§ Plant Variety
License : permission granted by the
rights holder [Copyright,
Trade Secret, Industrial Design, Layout Designs of Integrated Circuits, Patents] to another party through an agreement
based on the
granting of rights [not transfer
the rights] to enjoy
the economic benefits of the Copyrights,
Trade Secrets , Industrial
Designs, Layout Designs of Integrated Circuits, Patents are granted a protection for a specified period and certain
terms.
A licensor may grant a license under intellectual property laws to authorise a use (such as copying software or using
a (patented) invention)
to a licensee, sparing the licensee from a claim of infringement brought by the
licensor. A license under intellectual property commonly has several
components beyond the grant itself, including a term, territory, renewal
provisions, and other limitations deemed vital to the licensor.
Reflection :
TRIPs have many requirement,purpose and principle.
WIPO is one of TRIPs organization. From this material we can conclude that in
Law of International Trade we need to consider about the intelectual property
right and license. There are many step and requirement to get our own right.
There are a complicated step in Indonesia to get our own property right, it
need 48 days only to get a patent. Meanwhile in another country like singapure
they are only have 3 days to make a patent. So we need to work hard to make our
inovation get the intellectual property rights.
Reference :
PowerPoint from binus maya by Agus Riyanto, SH, LL.M
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