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TRIPS

Trade-Related aspects of Intellectual Property, universally known as TRIPS, is a multilateral agreement under the World Trade Organization (WTO) that took effect in 1994. It was the first such agreement to treat so-called intellectual property (IP) rights, most notably copyright and patents, as a global trade issue, on the theory that one country's failure to protect another's IP creates a barrier to trade between those countries. But the underlying reason for defining IP as as trade issue was to gain access to the well-established enforcement mechanisms of the WTO, which can authorize the use of trade sanctions against countries who do not meet the agreed standards.

The actual copyright and patent standards laid out in the TRIPS agreement are mostly drawn from other sources. On copyright, the Berne Convention is the source for most of the TRIPS provisions. The main areas in which TRIPS extends the Berne provisions on copyright are by adding explicit protection for software and databases. Similarly the Paris Convention provides the source of the TRIPS provisions on patents, to which TRIPS mainly adds enforcement provisions. Both the Berne and Paris Conventions are administered by WIPO.

TRIPS Standards—A Ceiling or a Floor?

At the time when it was being negotiated, developing countries pushed back strongly against TRIPS because they saw it as an assault on their flexibility to develop copyright and patent laws best suited to their economies and cultures. Even today, least-developed countries enjoy a temporary moratorium from the obligation to uphold TRIPS standards until 2021. But ironically, due to the few key flexibilities that developing countries managed to win during those negotiations, they now often cling to the TRIPS standards as a defense against pressures to adopt still higher levels of copyright and patent protection.

These pressures, which may be bilateral (such as under the US Trade Representative's Special 301 process) or multilateral (smaller, competing trade agreements such as the Trans-Pacific Partnership [TPP]), have multiplied in recent years due to an effective breakdown in negotiations at the WTO, which have stalled further progress at its latest round of negotiations, the Doha Development Round.

This stalemate has led to a tactic of forum-shifting from the WTO into other fora, where higher copyright and patent standards can be agreed, often between a smaller group of countries. These standards are commonly known as "TRIPS+", and in addition to the TPP they include the WIPO Copyright Treaty (which sets TRIPS+ standards including limitations on the use of devices that can circumvent DRM) and ACTA (which would have established a range of TRIPS+ enforcement measures).

The Future Relevance of TRIPS

Although this means that there won't be a new version of TRIPS any time soon, it remains an important treaty for at least three reasons: that so many countries have signed it (158 as of 2014), that it provides the most significant "stick" for the enforcement of copyright and patent standards against those countries, and that it is the single most significant obstacle to the reevaluation of those standards—such as the minimum "life plus 50 years" copyright term. Additionally, there are still a handful of outstanding issues that periodically come before the TRIPS Council for discussion, notably including "non-violation" complaints: whether to allow TRIPS disputes over loss of an expected benefit, even if the letter of the TRIPS Agreement has not actually been violated.

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