Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs)(1994.4.15)

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Release time:2016-08-12

Signed at Marrakesh on 15 April 1994
Effective January 1, 1995
Entry into force for China since December 11, 2001

Members,

Desiring 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 obstacles to legitimate trade;
Recognizes that, to this end, new rules and disciplines are needed on the following issues:
(a) the applicability of the basic principles of GATT 1994 and relevant international intellectual property agreements or conventions;
(B) the provision of appropriate standards and principles concerning the effectiveness, scope and use of trade-related intellectual property rights;
(c) To provide for effective and appropriate means of enforcing trade-related intellectual property rights, taking into account differences in national legal systems;
(d) To provide for effective and expeditious procedures for the prevention and settlement of intergovernmental disputes at the multilateral level;
(e) Transitional arrangements aimed at the fullest sharing of the results of the negotiations;
Recognizing the need for a multilateral framework of principles, rules and disciplines to address the international trade in counterfeit goods;
Recognizing that intellectual property rights are private rights;
Recognizing the fundamental public policy objectives of national intellectual property protection systems, including development and technology objectives;
Also recognizing the particular need of least developed country Members for maximum flexibility in the domestic implementation of laws and regulations so that they can create a sound and viable technological base;
Emphasizing the importance of reducing tensions through multilateral procedures to reach enhanced commitments to resolve trade-related intellectual property disputes;
Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as "WIPO") and other relevant international organizations;
It is hereby agreed as follows:

Part I General and Basic Principles

Article 1 Nature and scope of obligations
1. Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their laws more extensive protection than is required by this Agreement, provided that such protection is not inconsistent with the provisions of this Agreement. Members shall have the right to determine in their respective legal systems and practices the appropriate means of implementing the provisions of this Agreement.
For the purposes of this Agreement, the term "intellectual property" means all categories of intellectual property that are the subject of Sections 1 to 7 of Part II.
3. Members shall accord to nationals of other Members the treatment provided for in this Agreement. Nationals of other Members shall be understood, in relation to the intellectual property rights concerned, as natural or legal persons who meet the eligibility criteria for protection under the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Relation to Integrated Circuits, assuming that all WTO Members are members of those Conventions. Any Member making use of the possibilities provided for in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification, as foreseen in those provisions, to the Council for Trade-Related Aspects of Intellectual Property Rights ("the Council for TRIPS").

Article 2 Intellectual Property Convention
For the purposes of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 to 12 and 19 of the Paris Convention (1967).
Nothing in Parts I to IV of this Agreement shall derogate from existing obligations which Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in respect of Integrated Circuits.

Article 3 National Treatment
1. In respect of the protection of intellectual property rights, subject to the exceptions respectively provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in respect of Integrated Circuits, each Member shall accord to the nationals of other Members treatment no less favourable than that accorded to its own nationals. In the case of performers, producers of phonograms and broadcasting organizations, this obligation applies only to the rights provided for in this Agreement. Any Member making use of the possibilities provided for in Article 6 of the Berne Convention or in Article 16 (1) (B) of the Rome Convention shall make such notification to the Council for TRIPS as is foreseen in those Articles.
Members may make use of exceptions to judicial and administrative proceedings permitted under paragraph 1, including the designation of addresses for service or the appointment of agents within the jurisdiction of a Member, provided that such exceptions are necessary to ensure compliance with laws and regulations not inconsistent with the provisions of this Agreement and that such exceptions do not constitute a disguised restriction on trade.

Article 4 Most-favored-nation treatment
With respect to the protection of intellectual property, any advantage, preference, privilege or immunity granted by a Member to the nationals of any other State shall be accorded immediately and unconditionally to the nationals of all other Members. This obligation is relieved by any benefit, preference, privilege or immunity granted by a Member, which is:
(a) Derived from international agreements on mutual legal assistance or law enforcement of a general nature that are not specifically limited to the protection of intellectual property rights;
(B) granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention, which permit the treatment to be accorded not in the nature of national treatment but in the nature of treatment accorded in another State;
(c) with respect to the rights of performers, producers of phonograms and broadcasting organizations not provided for under this Agreement;
(d) derive from international agreements relating to the protection of intellectual property which entered into force before the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute arbitrary or unjustifiable discrimination against nationals of other Members.

Article 5 Multilateral agreements on the acquisition or maintenance of protection
The obligations of Articles 3 and 4 do not apply to procedures provided for in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.

Article 6 Exhaustion of rights
For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 2 and 4, nothing in this Agreement shall be used to address the exhaustion of intellectual property rights.

Article 7 Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and the transfer and diffusion of technology, to the mutual benefit of creators and users of technological knowledge, and to social and economic welfare and a balance of rights and obligations.

Principle 8
1. In formulating or amending their laws and regulations, Members may adopt measures necessary for the protection of public health and nutrition and the promotion of the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
Subject to the provisions of this Agreement, appropriate measures may be required to prevent the abuse of intellectual property rights by right holders or practices that unreasonably restrict trade or adversely affect the international transfer of technology.

Part II. Criteria relating to the effectiveness, scope and use of intellectual property rights

SECTION 1 COPYRIGHT AND RELATED RIGHTS

Article 9 Relationship to the Berne Convention
Members shall comply with the provisions of Articles 1 to 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall have no rights or obligations under this Agreement with respect to the rights conferred or derived from Article 6 bis of the Convention.
Copyright protection extends only to expressions, not to ideas, procedures, methods of operation, or mathematical concepts per se.

Article 10 Compilation of computer programs and data
Computer programs, whether in source or object code, shall be protected as works of writing under the Berne Convention (1971).
2. Compilations of data or other material, whether in machine-readable or other form, shall be protected as intellectual creation to the extent that the selection or arrangement of their contents constitutes intellectual creation. This protection shall not extend to the data or information itself and shall not prejudice any copyright existing in the data or information itself.

Article 11 Right of Lease
At least in the case of computer programs and cinematographic works, a Member shall give authors and their legal successors the right to permit or prohibit the commercial rental of originals or copies of their copyrighted works to the public. A Member may not have such an obligation with respect to a cinematographic work unless such rental has resulted in extensive reproduction of the work, thereby materially derogating from the exclusive reproduction rights granted by the Member to the author and his legal successors. In the case of a computer program, this obligation does not apply to a rental if the program itself is not the main subject of the rental.

Article 12 Duration of protection
The period of protection of a work, other than a photographic work or a work of applied art, shall not be less than 50 years from the end of the calendar year in which the work was authorized for publication, or 50 years from the end of the calendar year in which the work was completed, provided that the period of protection of the work is not based on the life of a natural person.

Article 13 Limitations and Exceptions
Any limitations or exceptions to the exclusive rights made by the members shall be limited to certain special circumstances and shall not conflict with the normal exploitation of the work and shall not unreasonably prejudice the legitimate rights and interests of the rights holder.

Article 14. Protection of performers, producers of phonograms and broadcasting organizations
1. For the purpose of fixing his performance to a phonogram, it shall be possible for a performer to prevent the following acts not authorized by him: fixing his unfixed performance and copying the recording. Performers should also have the possibility of preventing the following acts without their authorization: broadcasting by radio and communicating their live performances to the public.
2. Producers of phonograms shall have the right to permit or prohibit the direct or indirect reproduction of their phonograms.
3. Broadcasting organizations have the right to prohibit the following acts without their authorization: recording, reproduction of recordings, transmission by means of radio broadcasting and dissemination of their television broadcasts to the public. If the Members do not grant such rights to broadcasting organizations, they shall, subject to the provisions of the Berne Convention (1971), give the owner of the copyright in the subject matter of the broadcast the possibility of preventing such acts.
4. The provisions of article 11 relating to computer programs shall apply mutatis mutandis to producers of phonograms and to any other holder of rights in phonograms determined under the law of a Member. If, on 15 April 1994, a Member had implemented a system of equitable payment to rights holders for the rental of phonograms, that system may be maintained as long as the commercial rental of phonograms does not materially derogate from the exclusive reproduction rights of the rights holders.
5. The period of protection available to performers and producers of phonograms under this Agreement shall continue at least until the end of 50 years, calculated from the end of the calendar year in which the fixation or performance is completed. The term of protection granted in accordance with paragraph 3 shall last for at least 20 years from the end of the calendar year in which the broadcast is broadcast.
6. Any Member may prescribe conditions, limitations, exceptions and reservations to the rights conferred by paragraphs 1, 2 and 3, to the extent permitted by the Rome Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall, mutatis mutandis, also apply to the rights of performers and producers of phonograms in phonograms.

Section 2 Trademarks

Article 15 Protection of the subject matter
1. Any mark or combination of marks that distinguishes the goods and services of one enterprise from those of other enterprises can constitute a trademark. Such marks, especially words, including personal names, letters, numbers, combinations of components and colors of patterns, and any combination of such marks, shall meet the conditions for registration as a trademark. If the mark does not inherently distinguish the characteristics of the goods or services concerned, each member may be registered by the distinctiveness obtained through use. Members may require, as a condition of registration, that these markings be visually perceptible.
2. Paragraph 1 shall not be construed as preventing a Member from refusing to register a mark on other grounds, provided that these grounds do not derogate from the provisions of the Paris Convention (1967).
3. Members may use as a condition of registration. However, the actual use of a trademark shall not be a condition for the acceptance of the application. The application may not be rejected on the sole ground that the mark has not been used as intended after the expiration of three years from the date of application.
4. The nature of the goods or services to which the mark applies shall in no case constitute an obstacle to the registration of the mark.
5. Members shall register their trademarks in