The TRIPS Agreement of the GATT which became the WTO (World Trade Organisation) since 1994

The TRIPS (Agreement on Trade Related Aspects of Intellectual Property Rights), adopted as an annex to the GATT does not really set a minimum standard of protection in the different branches of intellectual property, but rather lays down a set of measures aiming to enforce the rights of the holders of intellectual property rights.

Among the different issues dealt with by the Agreement on Trade Related Aspects of Intellectual Property rights (trademarks, patents, designs, ...) are included the  literary and artistic property.

In the domain of copyright and neighboring rights, the TRIPS Agreement partially repeats the provisions of the Berne Convention and, in a less clear-cut way, some provisions of the Rome Convention.

On 16 February 2005, 148 States were members of the WTO.

The scope of protection of the TRIPS Agreement in the domain of neighboring rights

Article 14 of the TRIPS agreement mentions the performers, the phonogram producers and broadcasting organisations.

The minimum protection established for their benefit is extremely low.

The Agreement does not contain any definition.

1. The rights of performers

Article 14 - 1 repeats in quasi identical terms as those of the Rome Convention (Article 7.1 (a), (b), (c) (i)) a certain number of prerogatives of performers notably on the fixation of their performances, as well as the broadcasting and the communication to the public of their unfixed performances.

No exclusive right is granted to performers, but 30 years after the Rome Convention, again there is a possibility of preventing certain acts”.

• A “possibility of preventing” referring to sound fixations of an unfixed performance

In the first place, this possibility of preventing certain acts refers to fixations of performances on a phonogram.

In this respect, performers have the possibility of preventing the fixation of their unfixed performance (being the recording of their live performance) and the reproduction of this fixation of their live performance.

This right's outline is thus limited to a live performances fixed on a phonogram (it refers only to aural performances) and to the reproduction, also on an aural support, of this recording.

• A “possibility of preventing” the broadcasting and the communication to the public of live performances

The protection provided for under Article 14-1 which should enable performers to prevent certain acts, also applies to the broadcasting by wireless means and communication to the public of their live performances.

The wording of Article 14.1 does not limit this protection to purely sound performances and therefore also applies to the broadcasting and communication to the public of live performances associating images and sound.

2. A potential exclusive right relating to the rental of phonograms

Article 14.4 of the Agreement extends to phonogram producers “and any other right holders in phonograms as determined in Member's law” the possibility of benefiting from an exclusive right of rental similar to the one granted by article 11 in respect of computer programs.

This is an exclusive right to authorize or prohibit the commercial rental to the public of phonograms.

It is still necessary that the domestic law of the States party to the TRIPS Agreement recognize that performers are “holders of rights in phonograms”, which is incidentally a vague and ambiguous notion.

3. Exceptions and limitations

Point 6 of Article 14 refers, concerning the minimum protection granted to performers, phonograms producers and broadcasters, to the “conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention”.

4. Term of the rights

The TRIPS Agreement differs on this point from the Rome Convention instituting a minimal term of protection superior to that provided by that Convention.

The latter provided for a minimal term of 20 years for the protection of performers, phonogram producers and broadcasting organisations.

The TRIPS agreement provides for a minimal term of 50 years for the performers and the producers “computed from the end of the calendar year in which the fixation was made or the performance took place”.

As regards broadcasters, the minimal term of protection is of 20 years “from the end of the calendar year in which the broadcast took place”. 

The general principles of the agreement

1. Limited national treatment and most favored nation clause

Like the national treatment included in the Rome Convention and in the WIPO Treaty of 1996, the TRIPS Agreement provides for a limited national treatment.

Under Article 3 of the agreement, “Each Member shall accord to the nationals of other Members treatment no less favorable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in respect of Integrated Circuits.”

This principle of national treatment -already limited under the Rome Convention- is even more reduced in the domain of neighboring rights as the text continues: “In respect of performers, producers of phonograms and broadcasting organisations, this obligation only applies in respect of the rights provided under this Agreement”.

So the rights concerned here enjoy only the maximum “possibilities to prevent” provided for in Article 14.1 for performers.

In respect of these rights, one may ask whether these rights are considered as rights submitted to the national treatment principle even though they are not “expressis verbis” exclusive rights.

Moreover, even though the Agreement provides in its Article 4 for the application the most favored nation clause mandating the immediate application, for the benefit of all countries belonging to the WTO, the favor that one country would accord to another country, it is specified in Article 4 c) that exceptions from this obligation may include any advantage, privilege or immunity accorded by a member “in respect of the rights of performers, producers of phonograms and broadcasting organisations not provided under this agreement”.

This application of a limited national treatment in the domain of neighboring rights, as well as the exception to the principle of the most favored nation for right which are not included in the Agreement is the consequence of the weak minimum protection established by this Agreement in respect to the protection of the rights of performers, phonogram producers and broadcasting organisations.

Granting an unlimited national treatment in respect of neighboring rights, as well as the systematic treatment of the most favored nation, would lead to an important imbalance among states which, whilst themselves conforming only to the poor minimum protection  provisions of the TRIPS agreement, could benefit from a high level of protection in States which have a protective legislation, without assuring an equivalent protection in their own territory.

A national treatment without any reserve is only conceivable when it is sustained by a high level minimum basis of protection for neighboring rights which, until today, is not granted by any convention or treaty at international level.

It is also one of the aspects of the debate about the “cultural exception”.

2. The priority given to commercial interests

Under the terms of Article 8 paragraph 2 of the Agreement, it is indicated that:

“Appropriate measures, provided that they are consistent with the provisions of this agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.”

This worrying provision for the right holders reflects the context of the TRIPS Agreement, this being a trade agreement aimed at facilitating trade and not an instrument whose objective is to grant a minimum level of protection to right holders.

3. The means to enforce intellectual property rights

In its Articles 42 to 61, the Agreement includes several provisions with regard to the enforcement of rights. These provisions are obligations which the Member States of the WTO have to comply with.

Only some aspects of these provisions will be mentioned.

Article 41 provides for several general obligations:

First, the Member States undertake to ensure under their legislation enforcement procedures “so as to permit effective action against any act of infringement of intellectual property rights (...), including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.”

In the same way, the procedures in this domain will be “fair and equitable” This point is developed under Article 42, they shall not be “unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays”.
Article 43 organises the utilization of evidence and provides for access to it by the parties involved, within the framework of the procedures laid down.

Injunctions can be used by the judicial authorities “to order a party to desist from an infringement” (Article 44).

Under Article 45, judicial authorities “shall have the authority to order the infringer to pay the right holder damages adequate to compensate for the injury the right holder has suffered because of an infringement of that person's intellectual property right by an infringer who knowingly, or with reasonable grounds to know, engaged in infringing activity”. This last wording is not very fortunate and skirts the conditions of implementation in our law on civil liability.

The same article provides however that “in appropriate cases” Member States may authorize judicial authorities “to order recovery of profits and/or payment of pre-established damages even where the infringer did not knowingly, or with reasonable grounds to know, engage in infringing activity”.

Article 46 provides for the possibility for judicial authorities to remove infringing goods from the  commercial channels and even to destroy them.

Several prompt and effective provisional measures must be available for judicial authorities (Article 50) in order to:
- prevent an infringement of an intellectual property right
- preserve evidence.

4. The settlement of disputes

Article 63 organises a mechanism of transparency between Member States, by the publication or the making available to the public of laws and regulations as well as final judicial and administrative decisions concerning issues, subject matter of the TRIPS Agreement.

Each member “shall be prepared to supply, in response to a written request from another member” such information.

The laws and regulations will moreover be communicated to the TRIPS Council “in order to assist that Council in its review of the operation of this Agreement”.

Article 68 provides that the TRIPS Council shall monitor the operation of the Agreement and control the compliance by Member States of their obligations.

5.  Entry into force of the provisions of the agreement 

Under the terms of Article 65 the provisions of the TRIPS Agreement apply from the expiration of a period of one year following the date of entry into force of the agreement. 

The Agreement being applicable since the 1st January 1995, its provisions are applicable from the 1st January 1996.

A delay for a further period of four years is granted to developing countries, the application to them has been postponed until 1st January 2000. This delay is also available for any other Member State “which is in the process of transformation from a centrally -planned into a market, free-enterprise economy and which is undertaking structural reform of its intellectual property system and facing special problems” in this domain.

As regards the least-developed countries, they benefit from a delay of 10 years from the 1st January 1995, or until the 1st January 2005 to apply the provisions of the TRIPS Agreement.

6. The consequences of the Agreement in the domain of neighbouring rights

Many countries (WTO has 148 members) have legislated subsequently to the conclusion of the TRIPS Agreement, notably many developing countries under pressure from the expiry date of 1st January 2000.

This process has probably not been very positive for the holders of neighbouring rights. Indeed, a legislative process is slow and complex, and the necessary objective imposed by the TRIPS Agreement as regards the level of obligatory minimum protection is extremely low. Many States, notably among developing countries, which did not yet have any legislation in the domain of neighbouring rights, felt themselves compelled to legislate granting the holders of neighbouring rights the little prerogatives granted under Article 14 of the Agreement, and instituting restricting provisions in the domain of the enforcement of rights.

They may mistakenly believe that they have complied with an international standard with regard to intellectual property rights. Concerning neighbouring rights, the TRIPS Agreement is far from being a standard. Hopefully, the States that have complied with this Agreement will not, by the same token, abandon granting genuine protection to the holders of neighbouring rights for many years.

It is this which, paradoxically, constitutes the main risk of the TRIPS Agreement for right holders.