THE TRIPS AGREEMENT AND ITS IMPLEMENTATION IN RELATION TO SINGAPORE INTELLECTUAL PROPERTY LAW1

• Date: 01 December 1997
• Published date: 01 December 1997
• Citation: (1997) 9 SAcLJ 334

I. INTRODUCTION

The Agreement on Trade-Related Aspects of Intellectual Property Rights (hereinafter referred to as the “TRIPS Agreement”) has been hailed as one of the greatest breakthrough in international intellectual property protection. It was negotiated as part of the Uruguay Round of Multilateral Trade Negotiations under the auspices of the General Agreement on Tariffs and Trade (GATT) [now the World Trade Organisation (WTO)]. The TRIPS Agreement is a Multilateral Trade Agreement which is binding on all the more than 120 members of the World Trade Organisation (WTO). It recognised the importance of intellectual property protection and brought it into the international trade arena. Indeed, the preamble of the TRIPS Agreement states the desire of members:

“to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade”.

A notable feature of the TRIPS agreement is the extension of the dispute settlement procedure of GATT,2 as elaborated a lied by the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes,3 to the intellectual property regime. This permits, inter alia, trade sanctions to be imposed against a WTO Member for violation of the TRIPS Agreement. Take, for example, the availability of the suspension of concessions or other obligations if the recommendations and rulings of the Dispute Settlement Body of the WTO are not implemented. The operation of the TRIPS Agreement is monitored by the Council for TRIPS.

The TRIPS Agreement contains provisions dealing, inter alia, with each of the main areas of intellectual property rights, namely, patents, copyright and related rights,4 industrial designs, trademarks5 and confidential information. In addition, it also deals with geographical indications6 and layout-designs (topographies) of integrated circuits. It sets the common minimum standards of intellectual property protection to be implemented in the domestic laws of all the WTO member countries. These include standards concerning the availability, scope, use and minimum term of protection of intellectual property rights.

In addition, the TRIPS Agreement also provides, inter alia, for the following:

1. (a) enforcement of intellectual property rights (Part III of the TRIPS Agreement). It specifies the civil and administrative procedures and remedies, as well as, the criminal procedures on enforcement;

2. (b) acquisition and maintenance of intellectual property rights (Part IV of the TRIPS Agreement); and

3. (c) dispute prevention and settlement (Part V of the TRIPS Agreement). It provides the dispute settlement procedure for the resolution of disputes under the TRIPS Agreement.

This article will seek to provide an overview of some of the main TRIPS provisions dealing with the substantive standards of intellectual property protection and its implementation in relation to Singapore intellectual property law. Other issues pertaining, for example, to enforcement, acquisition and maintenance of intellectual property rights and dispute prevention and settlement, will not be covered in this article.7 In order to gain a clearer perspective of intellectual property protection under the TRIPS Agreement, it may be appropriate to set out a short description of some of the basic principles governing the TRIPS Agreement, as well as, the period for its implementation.

II. IMPLEMENTATION PERIOD

The TRIPS Agreement contains provisions dealing with the implementation period.8 These can broadly be categorised as follows:

1. (a) Developed Country: In general, a developed country member has a period of 1 year from January 1, 1995 to apply the provisions of the TRIPS Agreement.9

2. (b) Developing Country: A developing country member and a member country which is in the process of transformation from a centrally-planned into a market, free-enterprise economy is, however, entitled to delay the implementation of the TRIPS Agreement for a further period of 4 years. This means that implementation may be delayed until January 1, 2000. Note, however, that in relation to the application of the provisions on product patents protection to areas of technology which are not so protected in that member country,10 a delay for an additional period of 5 years (i.e. until January 1, 2005) is permitted.

3. (c) Least-developed Country: A least-developed country member has a further period of 10 years (i.e. total of 11 years) to implement the TRIPS Agreement. Thus, a least-developed country member may delay the implementation until January 1, 2006. This period may, however, be extended by the Council for TRIPS.

It is worth noting that the delay in the implementation of the TRIPS Agreement does not apply to the implementation of Article 3 (national treatment), Article 4 (most-favoured-nation treatment) and Article 5 (multilateral agreements on acquisition or maintenance of intellectual property rights) of the Agreement.11

III. BASIC PRINCIPLES

1. NATURE AND SCOPE OF OBLIGATIONS

The TRIPS Agreement sets out the minimum standards of intellectual property protection which member states have to implement in their

domestic laws. It does not attempt to lay down detailed rules but allows Members the discretion to determine the most appropriate method of implementing the objectives of the TRIPS Agreement within their domestic legal system. This approach, although providing greater flexibility to Members, may also result in differences in the domestic intellectual property protection among member states.

Be that as it may, the TRIPS Agreement does, however, require Members to adopt 2 main principles, namely, the principles of national treatment and the most-favoured-nation treatment.

2. NATIONAL TREATMENT12

The principle of national treatment requires each Member to grant to the nationals of other Members the same intellectual property protection13 which it grants to its own nationals. This principle can also be found in other international intellectual property conventions, such as, the Paris Convention for the Protection of Industrial Property.

The effect of the principle is, inter alia, that:

1. (a) it ensures that member states will not discriminate against foreigners with regard to intellectual property protection; and

2. (b) a member state which has implemented a higher standard of intellectual property protection will be required to grant that additional protection to the nationals of other member states even though their own nationals may not receive that additional protection in those other member states.

3. MOST-FAVOURED-NATION TREATMENT14

The most-favoured-nation treatment principle requires a Member which has granted any advantage, favour, privilege or immunity with regard to intellectual property protection to the nationals of any member state to grant the same to the nationals of all other member states. Such privileges etc. must be accorded to all other member states immediately and unconditionally. This principle prevents discriminatory treatment among member states by requiring that the grant of the most-favoured-nation status to one member state be extended to all member states. This will impact particularly on bilateral treaties entered into between member

countries. There are, however, certain exemptions from this obligation provided for in the TRIPS Agreement.15

4. OBJECTIVES

The TRIPS Agreement provides that:

“The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”16

This objective should be borne in mind particularly in interpreting some of the more contentious provisions in the Agreement.

5. PRINCIPLES

The TRIPS Agreement also allows Members to adopt measures to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided such measures are consistent with the provisions of the TRIPS Agreement. These objectives and principles being general in nature are likely to lead to different interpretations by the member states.

6. EXHAUSTION OF RIGHTS

It is interesting to note that the TRIPS Agreement avoids issues relating to the complex and often controversial area of parallel imports and exhaustion of intellectual property rights. Article 6 of the TRIPS Agreement states that:

“… nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.”

It follows, therefore, that Members may be free to prescribe their own domestic position on parallel imports.

IV. CONVENTIONS AND TREATIES

1. REFERENCES IN TRIPS

It is worth mentioning that the TRIPS Agreement also contains references to some of the main international intellectual property conventions and treaties, namely:

1. (a) the Paris Convention for the Protection of Industrial Property (1967) (hereinafter referred to as the “Paris Convention”);

2. (b) the Berne Convention for the Protection of Literary and Artistic Works (1971) (hereinafter referred to as the “Berne Convention”);

3. (c) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961) (hereinafter referred to as the “Rome Convention”); and

4. (d) the Treaty on Intellectual Property in Respect of Integrated Circuit (1989) (hereinafter referred to as the “IPIC Treaty”).

Whilst the TRIPS Agreement does not compel Members to join the Conventions and Treaties stated above, it does require...