Form of protection. The Washington Treaty, as mentioned, followed the sui generis approach first de- veloped by the U.S. law on the matter. However, neither the Treaty nor TRIPS precludes the application of one of the traditional forms of protection (e.g. copy- right, patents) to the extent that the minimum standards set forth in the Treaty and in the Agreement are respected. For instance, if copyright protection were applied, the minimum duration would be much longer than under a sui generis regime (e.g., 50 years post mortem auctoris or 50 years counted in accordance with Article 12 of TRIPS). If patent protection were applied, the designs/topographies would have to meet the requirements of novelty and inventive step, standards that layout-designs/topographies are un- likely to comply with in most cases. Under Article 12 of the Treaty, a situation of cumulative protection may take place. The Treaty “shall not affect the obligations that any Contracting Party may have under the Paris Convention for the Protection of Industrial Property or the Berne Convention for the Protection of Literary and Artistic Works”. According to the Director General of WIPO, the effect of this article is that “if a Contracting Party chose to implement its obligations under the Treaty through a law made, totally or partly, on the basis that layout-designs are works under the copyright law or are a subject matter of industrial property law, and that Con- tracting Party is a party not only to the proposed Treaty but also to the Berne Convention or the Paris Convention, the said law must be compatible not only with the proposed Treaty but also with that of those Conventions. For example, if a Contracting Party considered layout-designs to be works under its copyright law and was a party to both the proposed Treaty and the Berne Convention, layout- designs would have to be protected without formalities (even though the proposed Treaty admits formalities) and for 50 years after the death of the author (even though the proposed Treaty admits a shorter period of protection). Or, if the Con- tracting Party is party to both the proposed Treaty and the Paris Convention and protects layout-designs by patents for inventions or utility models, layout-designs would require the grant of a patent or other official certificate (even though the proposed Treaty admits protection without any procedure before a government authority).”995
Form of protection. Following the identification of the areas to be protected within the three (3) sub-categories of HV1, the Parties shall discuss and use best efforts to agree to the form of legislated or regulatory protection of the identified areas, which protection may include new forms of protection for indigenous use.
