History of the provision. 2.1 Situation pre-TRIPS Transparency was a central element of the GATT 1947 system. The legal basis was Article X GATT 1947, which continues to apply to trade in goods under the new GATT 1994. Article X is divided into three paragraphs:
History of the provision. 2.1 Situation pre-TRIPS TRIPS is the first international treaty to generally recognize the need to control an- ticompetitive IPR practices. Article 5A(2) of the Paris Convention for the Interna- tional Protection of Industrial Property, though framed more broadly (“. . . to pre- vent abuses which might result from the exercise of the exclusive right conferred by the patent. ”),4 established a basis for remedying anticompetitive practices, but gave limited attention to defining the types of practices that would constitute abuse (beyond non-working). As regards abuses more generally, the provision re- lates only to patents. Article 10bis of the same Convention relates only to protection against acts of unfair competition, i.e., dishonest practices in business.5 These are generally to be distinguished from restrictive trade practices, even though there may be some overlaps between the two sets of rules (e.g., boycott, discrimination, etc.). The stillborn Havana Charter of 1948 on an International Trade Organization (ITO) contained in Article 46 an undertaking by Members to prevent restraints on competition (and to cooperate with the Organization in preventing such re- straints), and permitted a Member to bring a complaint to the Organization on the 3 Article 31(k) reads: “Members are not obliged to apply the conditions set forth in sub-paragraphs
History of the provision. 2.1 Situation pre-TRIPS Under the predecessor of the WTO, the GATT 1947,1 there were no transitional periods for any Contracting Party, be it developed or not.2 This may be explained by the fact that the GATT is mainly about the reduction of tariffs. This has con- siderably less effect on a country’s internal legal system than the TRIPS disci- plines, which require the introduction of minimum standards, border controls and domestic enforcement procedures along with the setting up of the respective authorities. Instead of transitional periods, Part IV of the GATT (Trade and Devel- opment, Article XXXVI) seeks to boost developing countries’ and least-developed countries’ (LDCs) export earnings by obligating developed states to open their markets for primary products from those countries3 and to waive reciprocity for tariff reduction commitments.4
History of the provision. 2.1 Situation pre-TRIPS Neither the review nor the amendment or modification of a treaty is spe- cific to TRIPS. Amendment and modification of treaties have been traditional 159 For the objectives of TRIPS and the rationales underlying its adoption see Section 7. For a detailed analysis, see Chapter 6 (in particular on Article 7) and Chapter 1 (on the preamble). 160 See Article 41 of the Vienna Convention on the Law of Treaties. It is doubtful, however, if this provision is directly applicable to the TRIPS Agreement. In any case, in the TRIPS context, such modification could occur where a vote among WTO Members does not result in unanimity. In that case, the proposed modifications of the Agreement would apply only to those Members supporting it.
History of the provision. 2.1 Situation pre-TRIPS As explained elsewhere in this book, the trade-related aspects of intellectual prop- erty rights are a new and complex subject in the new structure of GATT-WTO and it was thus considered necessary to establish a new organ responsible to deal with the operation and implementation of the new Agreement.
History of the provision. 2.1 Situation pre-TRIPS Until the middle part of the twentieth century, a distinction was customarily drawn between “industrial property”, and the works of authors and artists. “Industrial property” was the province of business, and generally referred to patents and trademarks. The domain of the author and artist was protected by copyright and related rights. This distinction is reflected in the names of the two earliest multi- lateral agreements on the protection of intellectual property, the Paris Convention on the Protection of Industrial Property (1883) and the Berne Convention on the Protection of Literary and Artistic Works (1886).86 While this distinction was at one time grounded in commerce, the dawning of the so-called “post-industrial” era loosened the tie. The author became, for example, the computer programmer whose work underpinned a new generation of businesses. The boundaries between the industrial and artistic blurred, and the inclusive term “intellectual property” became commonly used to refer to the results of creative human endeavour protected by law.
History of the provision. 2.1 Situation pre-TRIPS Identifiers of the geographical origin of goods have long been protected against commercial misuse.329 The common law doctrine of passing off, based on protec- tion against the tort of unfair competition, was used to protect merchants against deceptive geographic claims.330 In U.S. and U.K. law, for example, geographic origin was protected by collective marks and certification marks.331 In civil law jurisdictions, the appellation of origin was used to protect against false claims of geographic origin. Moreover, laws regulating international trade typically required importers to identify the geographic origin of goods to allow for the appropriate application of customs duties, quota regulations and so forth. 328 Collective trademarks involve shared ownership, but typically in respect to a defined group of owners. A geographical indication is typically available to all producers within a region, although the group of producers in a region entitled to use the indication may be restricted by various forms of regulation.
History of the provision. 2.1 Situation pre-TRIPS Prior to negotiation of the TRIPS Agreement governments maintained different policies and rules on the subject of exhaustion of intellectual property rights in so far as those policies and rules affected international trade.202 The situation in Europe and in the United States was rather complicated, as countries not only 202 The first clear articulation of the concept of exhaustion of IPRs is sometimes traced to an 1873 U.S. Supreme Court decision, Xxxxx x. Xxxxx U.S. (17 Wall) 453 (1873). This case involved an attempt by the holder of a patent on a funeral casket lid to impose territorial restrictions on a purchaser’s resale of caskets incorporating that lid. The Supreme Court held that the patent holder’s control over the invention was exhausted on the first sale. It said: “in the essential nature of things, when the patentee, or the person having his rights, sells a machine or instrument whose sole value is in its use, he receives the consideration for its use and he parts with the right to restrict that use. The article, in the language of the court, passes without the limit of the monopoly. That is to say, the patentee or his assignee having in the act of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine
History of the provision. 2.1 Situation pre-TRIPS Articles 7 and 8 of TRIPS establish the objectives and principles of this particular Agreement. Since TRIPS brought the regulation of intellectual property rights into the GATT, and now WTO, multilateral trading system for the first time,271 there is no pre-TRIPS situation in respect to the objectives and principles of the Agreement. In other words, the objectives and principles of the TRIPS are unique to the Agreement. The pre-TRIPS Agreement situation with respect to international governance of IPRs involved treaties administered by WIPO and other institutions. Even with respect to more detailed treaties like the Berne Convention, the pre-TRIPS in- ternational situation largely left discretion to regulate IPRs in the hands of each state, taking into account the domestic regulatory interests of the state. XXXXX represented a dramatic shift in that situation, taking away a great deal of internal regulatory discretion, and potentially shifting the pre-existing balance of internal interests. In light of this rather dramatic shift, the elaboration of objectives and principles in Articles 7 and 8 may well be viewed as a means to establish a balanc- ing of interests at the multilateral level to substitute for the balancing traditionally undertaken at the national level. Neither the Paris nor Berne Convention included provisions analogous to Arti- cles 7 and 8. That is, there are no provisions that act to establish an over- arching set of principles regarding the interpretation and implementation of the agreement. 271 As noted elsewhere in this book, there were a few provisions in the GATT 1947 that con- cerned unfair competition, and Article XX(d) provided an exception for measures taken to protect IP. There was, however, no attempt in the agreement to establish substantive IPRs standards. 120 Objectives and principles
History of the provision. 2.1 Situation pre-TRIPS
