TRIPS Agreement Research Articles

The Role of the WTO in Making a Trips Agreement as part of International Economic Law Sources

This research is a cross-border economic study that explains the role of the international trade organization, better known as the WTO. The WTO was officially established on January 1, 1995, with GATT's pioneer. At that time, the existence of GATT was still temporary. The framework for trade liberalization appears in the form of the WTO Agreement, which accommodates general provisions relating to trade. In the WTO Agreement agreed upon by the member countries, there are several additional agreements, such as the Agreement on Agriculture and TRIPs Agreement. In this study, we will discuss further the impact of the additional TRIPs Agreement made by the WTO and how it affects the global economy, accompanied by examples. Then it will be explained further how TRIPs minimize the negative impact of the agreement.

Improving the Provisions on Enforcement of Intellectual Property Rights in Order to Implement Vietnam’s Commitments in the New-Generation Free Trade Agreements

The Law on amending and supplementing a number of provisions of the Law on Intellectual Property, which was passed by the National Assembly on June 16, 2022, has marked a new development stage of Vietnam’s intellectual property law in the process of international integration with the incorporation of many commitments of Vietnam in the new-generation free trade agreements, including strong commitments on enforcement of intellectual property rights. This article analyzes the formulation and development of international standards on enforcement of intellectual property rights, focusing on the new provisions of new-generation free trade agreements on enforcement of intellectual property rights compared to those under the TRIPS Agreement of the World Trade Organization. From there, the article compares these international standards with the Law on amending and supplementing a number of provisions of the Law on Intellectual Property and makes recommendations to continue improving Vietnamese intellectual property law on enforcement of intellectual property rights.

МІЖНАРОДНІ ЗАСАДИ КРИМІНАЛЬНО-ПРАВОВОГО ЗАХИСТУ ОБ’ЄКТІВ ІНТЕЛЕКТУАЛЬНОЇ ВЛАСНОСТІ

The article is devoted to issues of international legal principles in the field of implementation and protection of intellectual property objects in the aspect of influence on the processes of law enforcement and law-making in the field of criminal law of domestic legal systems. It is determined that the following are important for the criminal protection of intellectual property rights: the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), the Convention on Cybercrime, the Paris Convention for the Protection of Industrial Property, the Berne Convention for the Protection of Literary and Artistic Works, the Hague Agreement Concerning the International Registration of Industrial Designs, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration to them, and others. The relevance of this issue is due to the fact that, taking into account the processes of globalization of the world economy, as well as the process of integration of the legal systems of the countries of the world, the study of the international principles of criminal and legal protection of intellectual property is of great importance at the current stage of Ukraine’s development. The author determines that the concept of “intellectual property” should be understood as a type of property as a generic concept. Based on the analysis of the norms of international acts on the criminal protection of intellectual property rights, a number of problems have been identified that must be resolved in legislation, as well as legal science and practice. These problems include: 1) the problem of determining in which sections of the criminal codes the norms establishing criminal liability for infringement of intellectual property rights should be located. It is proposed to combine the norms establishing criminal liability for infringement of intellectual property rights into one section “Criminal offenses against intellectual property” in the Criminal Code of Ukraine; 2) the problem of determining which objects of intellectual property should be protected by the norms of criminal law. Key words: criminal liability, intellectual property, criminal legal protection, World Intellectual Property Organization, European Union.

Proposals for the Introduction of Certificates of Authorship instead of Patents for Methods of Diagnosis and Treatment

Recent years have shown reasonable support (including by the author of the article) for proposals to exclude methods for diagnosing and treating people and animals from the list of results of intellectual activity in respect of which patent protection can be applied in the scientific legal literature. These proposals are based on the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), foreign experience of countries with developed legal systems and arguments about the practical inexpediency of patenting these results of intellectual activity, as well as on the moral and ethical side of the issue. In the case of legislative support for these initiatives, in order to preserve the encouragement of innovation and reflect the contribution of developers to medical science in the field of creating new and developing existing methods of diagnosis and treatment, the paper proposes to refer to the experience of the USSR in issuing copyright certificates for this type of invention and to revive such legal mechanisms in the Russian legal system.

“Penciclovir”

“Penciclovir”

Compulsory licensing: an effective tool for securing access to Covid-19 vaccines for developing states?

AbstractA significant issue in combatting the Covid-19 pandemic is the need to enhance developing states’ access to Covid-19 vaccines. The present paper considers the request for a temporary waiver of intellectual property rights in relation to Covid-19 technologies and treatments submitted to the World Trade Organization and analyses a key argument against the proposed waiver: that the compulsory licensing provisions set out in the TRIPS Agreement are sufficiently flexible to help states get access to vaccines. The compulsory licensing flexibilities set out in TRIPS, including the amendment to TRIPS in Article 31bis, are evaluated, to explore whether compulsory licensing could be an effective tool in helping developing states to access Covid-19 vaccines. Key issues are explored from a human rights perspective to examine whether a rights-based approach to the compulsory licensing provisions could offer further insights as to how the provisions could be more workable, to enhance access to medicines and vaccines for developing states.

Examining the Impact of TRIPS Agreement on Innovation: A Review and Research Agenda

Examining the Impact of TRIPS Agreement on Innovation: A Review and Research Agenda

The Parallel Imports of Invention Patents in Pharmaceutical Products

This research was carried out with the aim of knowing the nature of parallel imports, regulations in optimizing parallel imports of pharmaceutical patent products and strategies for using parallel imports in pharmaceutical patent product inventions in Indonesia. This research uses a normative type of research by utilizing a legal research approach and a conceptual approach. The results of this study, namely: 1) Parallel import is an activity of importing patent protected inventions without third party permission to the inventor/patent holder so that the patent holder cannot enjoy the incentives for the exploration process by a third party. This activity is carried out because it is crucial and fundamental in nature, namely the interests of health and is related to human life. This activity is to ensure a reasonable price and fulfill a sense of justice for essential pharmaceutical inventions that are very much needed by humans and can cure diseases. The implication is the lack of a sense of justice for the inventor/patent holder and the inventor/patent holder cannot enjoy the maximum economic benefits and exclusive rights over the third party invention exploration process. However, there are exceptions to minimize losses for inventors/patent holders, namely the doctrine of national exhaustion (earning royalties and economic benefits from the first sale) which upholds Article 19 of Law no. 13 of 2016. 2) importers are required to fulfill administrative requirements such as distribution permits, pharmaceutical industry permits from abroad and SKI Border or Post Border. Regulation of parallel import pharmaceutical inventions is regulated in the TRIPs Agreement, Law No. 13 of 2016, Law no. 36 of 2009, Law no. 17 of 2006, Regulation of the Minister of Trade of the Republic of Indonesia Number 17 of 2021, Law of the Republic of Indonesia Number 20 of 2014, BPOM Regulation Number 15 of 2020 and PerKa BPOMRI Number 24 of 2017. 3). Parallel import strategy for patent pharmaceutical inventions with an obligation to importers to complete administrative requirements to prevent misuse of parallel imports, and in accordance with the provisions of Article 167 letter (a) which states a price determination in order to obtain cheaper prices in the international market and reduce competition. healthy so that consumers can get fair prices and create a sense of justice, adhere to the national doctrine of exhaustion which pays attention to the interests of inventors, and imports in reasonable quantities to foster a sense of justice between inventors and importers.

No reliance on the Paris Convention or TRIPS Agreement for well-known trade marks in Nigeria

Abstract Further to these decisions, it is doubtful whether owners of well-known trade marks may rely on the provisions of the Paris Convention or the TRIPS Agreement in Nigeria.

Compulsory Licences in a Regional Context: An Appraisal of the TRIPS Amendment’s Special Regional Treatment

Abstract Against the backdrop of the regional mechanism carved out under Art. 31bis(3) of the TRIPS Agreement for issuing compulsory licences, the paper critically appraises the mechanism’s viability or otherwise in addressing the challenge of access to essential medicines in a regional context. The paper finds that the mechanism remains severely restricted. First, it does not exempt an importing country within the regional alliance from issuing a separate compulsory licence where a patent is in force on the pharmaceutical product in question. Second, the logic of the mechanism is counterintuitive in that it is prohibited from being used as an instrument to pursue industrial policy objectives, and in a broad sense, a public-health-related industrial agenda. Using the East African Community (EAC) as a case study, the paper practically reveals how the identified distortions inhibit the use of compulsory licences within a regional coalition. The paper also examines how the potency of the TRIPS transition period, which excludes 80% of EAC member states from granting pharmaceuticals patents until 2034, is being whittled down by the African Regional Intellectual Property Organization’s (ARIPO) obligations and unclear domestic legislation. The paper recommends an overhaul of the TRIPS amendment’s regional mechanism for better effectiveness in driving pharmaceutical access.

International Copyright Flexibilities for Prevention, Treatment and Containment of COVID-19

Most policymaking attention with respect to intellectual property barriers toCOVID-19 prevention, treatment and containment has been focused on patents.This focus is reflected in the World Trade Organisation (WTO) Ministerial Decisionon the TRIPS Agreement, adopted on 17 June 2022, which provides a limited waiverof TRIPS rules on compulsory licences for production of COVID-19 vaccines. Theoriginal WTO proposal for a TRIPS waiver, however, explicitly applied to all formsof intellectual property, including copyright. This article outlines the numerous waysin which copyright can create barriers to addressing COVID-19. It also provides adescription of international copyright treaty provisions that permit uses of copyrightmaterials in response to the barriers identified, despite the exclusion of copyrightfrom the final TRIPS waiver.

Just Rules for Innovative Pharmaceuticals

Globalized in 1995 through the TRIPs Agreement, humanity’s dominant mechanism for encouraging innovations involves 20-year product patents, whose monopoly features enable innovators to reap large markups or licensing fees from early users. Exclusive reliance on this reward mechanism in the pharmaceutical sector is morally problematic for two main reasons. First, it imposes a great burden on poor people who cannot afford to buy patented treatments at monopoly prices and whose specific health problems are therefore neglected by pharmacological research. Second, it discourages pharmaceutical firms from fighting diseases at the population level with the aim of slashing their incidence. These problems can be alleviated by establishing a supplementary alternative reward mechanism that would enable pharmaceutical innovators to exchange their monopoly privileges on a patented product for impact rewards based on the actual health gains achieved with this product. As such, an international Health Impact Fund (HIF) would create powerful new incentives to rapidly develop remedies against diseases concentrated among the poor, provide such remedies with ample care at very low prices, and deploy them strategically to contain, suppress, and ideally eradicate the target disease. By promoting innovations and their diffusion together, the HIF would greatly enlarge the benefits, and thereby also the cost-effectiveness, of the pharmaceutical sector, especially in favor of the world’s poor.

Research on the Adjustment of Patent Protection Standards under Emergencies: Based on the TRIPs Agreement

The patent system has a catalytic effect on innovation and imports, which could go some way to alleviating the current vaccine dilemma in the pandemic environment, i.e. insufficient capacity and inequitable distribution. This paper identifies this role through a review of the patent system and the TRIPs Agreement and argues that countries have the flexibility to adapt their patent systems to the current situation through the flexibility provisions of the TRIPs Agreement to maximize this facilitative role in addressing the vaccine issue. This paper suggests that in the current pandemic environment it is necessary to stimulate pharmaceutical companies to accelerate the process of vaccine development by reducing the inventive step testing requirements. In addition, to reduce market risk and maximize the extent to which patents can facilitate the vaccine development process, this paper argues that flexibility should not be used as an excuse for adjusting the duration of protection and requiring a complete patent waiver.

PENGGUNAAN LAGU DAN MUSIK SEBAGAI SUARA LATAR (BACKSOUND) YOUTUBE TANPA IZIN DALAM PERSPEKTIF PERLINDUNGAN HAK CIPTA

Social media has implications in terms of democratization of information, because whoever owns an account can be a prosumer (producer and consumer) in creating messages such as throughYouTube. In its implementation, there are many violations committed by YouTubers in creating content such as the use of songs and music as YouTube background sounds without permission by the creator or copyright holder. Songs and music are protected works as regulated in Article 40 letter d of Law Number 28 of 2014 concerning Copyright. The government protects copyright internationally through international conventions, including: TRIPs Agreement, Bern Convention, Universal Copy Rights Convention, Rome Concention and also bilateral agreements between countries and nationally through Law No. 28 of 2014 concerning Copyright, in it regulates the protection of moral rights as regulated in Article 5 and economic rights as regulated in Article 8 as exclusive rights. The government's efforts to provide legal protection for Copyright by implementing the provisions of Article 54 of Law Number 28 of 2014 concerning Copyright and implementing regulations regarding royalties, namely Government Regulation Number 56 of 2021 concerning Management of Royalties for Song and Music Copyrights.Keywords :Copyright Protection, Songs, Music.

PERLINDUNGAN HUKUM PATEN ASING YANG TELAH TERDAFTAR DI INDONESIA

THE PROTECTION OF FOREIGN PATENTS BASED IN INDONESIA
 The establishment of Law number 14 of 2001 concerning Patentas a follow up policy after the ratification of the World Trade Organization (WTO) including its attachment concerning Trade Related Intellectual Property Rights (TRIPs) has brought legal consequence. That is to apply The TRIPs agreement in nationallaw where one of the principle is known the National principletoward foreign patents in Indonesia. Patent is one of the scopeof intellectual property rights. A patent is granted to a person or a group of people its discovery in the field of technologywhich has a very important position and strategically tosupport. A patent is an exclusive right granted by the State tothe inventor's top invensinya in the field of technology and thepeople who got the rights to it. The patent is necessary tosupport the variety of life in the community. The foreign Patentrights will be preserved as long as the invention has registeredto directorate-general of Intellectual Property Rights of theRepublic of Indonesia. The invention registration could beapplied in 2 (two) mechanism i.e. priority right registration andPatent Cooperation Treaty (PCT) and the application must beauthorized by Indonesian IPR consultant. Patent Law No. 13 year 2016 do not only provide protection against patent citizensof Indonesia but also provides protection against patent lawforeign citizens in Indonesia. The protection of the law wasgiven in order to increase investment in Indonesia and wouldenhance inventor's top invention useful for developments in society. To give a sense of security, convenient to the Inventor'sforeign country then provide protection. All countries need toratify them to protect the IPR of their citizens at theinternational level. This research concerns with thearrangement and implementation of patent protection throughPCT and RUP. This research concludes that the internationalconventions have been made to accommodate and guaranteethe legal aspect of the Treaty, such as Trips, PCT and WIPO. As a country which has ratified the Treaty, Indonesia has issuedPresidential Decree No. 16 of 1997 which is finalized into Law No. 13 of 2016 on Patents (Article 33), stating that applicationsmay be filed under a Patent Cooperation Treaty. This researchalso points out that although it’s believed that all countries willbenefit from PCT and RUP, PCT has not attracted significantnumbers of applicants. That means, there is still much work tobe done in invention patenting law foreign citizens in Indonesia.
 Keywords : legal protection, patents, foreign patent.

PANDEMİ AŞILARI VE İLAÇLARINDA PATENT KORUMASININ DEĞERLENDİRİLMESİ

COVID-19 salgını, Dünya Sağlık Örgütü (DSÖ) tarafından 11 Mart 2020 tarihinde dünya çapında bir salgın (küresel pandemi) olarak duyuruldu. DSÖ, bu duyuru ile ülkeleri, salgının küresel ekonomide ve sağlıkta benzeri görülmemiş bir krizi temsil ettiği konusunda uyardı. Her ne kadar ülkeler çeşitli seviyelerde almış oldukları sokağa çıkma yasakları, dönüşümlü ya da evden çalışma, sınırların kapatılması ya da yabancılara karantina uygulanması gibi kısıtlama ve tedbirlerle salgını önlemeye çalışsalar da bu tedbirlerin çok da işe yaradığı söylenemez. Zira alınan tedbirler salgını sona erdirmeyip sadece süreci yavaşlatmaktadır. Salgının bir süre daha devam etmesi halinde ise sonucu en başta fiziksel ve psikolojik olarak insan sağlığını etkileyecek; bununla da sınırlı kalmayıp ekonomi, sanayi, eğitim ve turizm gibi alanlarda telafisi yıllarca mümkün olmayacak zararlara sebebiyet verecektir. 2020 yılı başlarında kısa bir süre içerisinde dünyayı etkisi altına almasına rağmen etkisini uzun süredir devam ettiren COVID-19 salgınını önleyebilmek için şu an elimizde bulunan en etkili ilaç COVID-19 aşılarıdır. Aralık 2020 sonu itibarıyla aşıya erişebilen ülkelerde öncelikli gruplardan başlanmak üzere aşılama başlamıştır. 18 Temmuz 2021 tarihi itibariyle dünya genelinde 3.66 milyar doz aşı yapıldığı görülmektedir. Bazı ülkeler iki doz aşı hedefine ulaşmaya çalışırken ülkemizde de olduğu gibi bazı bölgelerde üçüncü doz aşılamaya geçmişlerdir. Yemen, Mali gibi ülkelerde bu oran oldukça düşükken Haiti gibi bazı gelişmemiş ülkelerde ise henüz tek doz dahi aşı uygulanmamıştır. Koronavirüsün hızlı mutasyon geçiren yapısı göz önünde bulundurulduğunda dünya genelinde eş zamanda aşılama uygulanmadan salgının bitmeyeceği ve sektörler üzerindeki olumsuz etkisini daha yıllarca sürdüreceği ortadadır. Bu nedenle Dünya Ticaret Örgütü ve bazı dünya liderlerinin açıklamalarıyla birlikte COVID-19 aşıları ve tedavileri için ilaç şirketlerinin patent yükümlülüklerinden feragat etmesinin mümkün olup olmayacağı hususunda tartışmalar gündeme gelmiştir. Zira, içinde bulunduğumuz bu olağanüstü dönemde TRIPS Anlaşması kapsamında patent hakkının ilaç şirketlerine sağlamış olduğu yasal koruma ile insanların temel haklarından olan ilaçlara erişim hakkı arasında bir denge kurulması gerekmektedir. Bu çalışmada, COVID-19 aşı ve ilaçlarından patent korumasının kaldırıp kaldırılamayacağı hususu benzer örnekler dikkate alınarak analiz edilecektir.

ADDRESSING VACCINE INEQUITY DURING THE COVID-19 PANDEMIC: THE TRIPS INTELLECTUAL PROPERTY WAIVER PROPOSAL AND BEYOND

AbstractThis article examines global vaccine inequity during the COVID-19 pandemic. We critique intellectual property (IP) law under the 1994 WTO TRIPS Agreement, and specifically, the role that IP has played in enabling the inequities of production, distribution and pricing in the COVID-19 vaccine context. Given the failure of international response mechanisms, including COVAX and C-TAP, to address vaccine inequity, we argue the TRIPS waiver proposal should be viewed as offering a necessary and proportionate legal measure for clearing IP barriers that cannot be achieved by existing TRIPS flexibilities. Finally, we reflect on the waiver debate in the wider context of TRIPS and the need to boost global pandemic preparedness.

Intellectual property framework responses to health emergencies – options for Africa

We debate whether intellectual property (IP) protection of medical products and devices required to prevent, treat and contain COVID-19 should be waived, as proposed by South Africa and India, under the World Trade Organization (WTO)’s Agreement on Trade-related aspects of Intellectual Property Rights (TRIPS Agreement). We discuss existing public policy mechanisms under the TRIPS Agreement and how these have been implemented at national level in Africa, and find that these have proven inadequate and that they have been sub-optimally implemented. We then consider the TRIPS Waiver proposal which has been tabled due to the inadequacy of existing mechanisms and outline the EU’s counter proposal which is founded on existing mechanisms. Both proposals have served at multiple WTO council meetings and would have been the subject of the 2021 WTO Ministerial Conference, which was postponed and is now set to be held in June 2022. Meanwhile, the proposal has been the subject of negotiations between India, South Africa, the EU and the USA (‘the quad’) and, as of May 2022, has been opened for consideration by all Members. Whatever the outcome of WTO deliberations, African states must take necessary national IP regulatory reforms and cooperate at sub-regional and continental level to improve access to medical products and devices to meet their citizenry’s healthcare needs. Significance: There is need for a sustainable and comprehensive intellectual property framework that is responsive to health emergencies. Existing public policy mechanisms have not proven effective. Adaptation and innovation are required at the international norm-setting level as evidenced by the two in-progress proposals for a TRIPS Agreement waiver and for an International Treaty on Pandemics. Both are contested and may only actualise in the medium to long term. In the context of such uncertainty and delay, timely action should be taken at national level, through legislative reform coupled with necessary manufacturing capacity, which will be boosted by cooperation between African states.

How does TRIPs compliance affect the economic growth of developing countries? Application of the Synthetic Control method

AbstractThis paper examines the effects of intellectual property rights (IPRs) on the economic growth of countries, with special attention to developing countries. We examine both the strength of countries' IPRs, as well as their compliance with the 1995 Agreement on Trade‐Related Aspects of Intellectual Property Rights (TRIPs) of the World Trade Organization. Our theoretical framework is a growth model which distinguishes capital as physical capital, human capital and intellectual property. Our methods include panel regression techniques, plus a novel Synthetic Control method. The latter is valuable for examining policy effects in research situations where data are limited to small sample sizes; and where reverse causality and heterogeneity are concerns. The Synthetic Control method allows us to assess the impact of TRIPs compliance on economic growth relative to a counterfactual of what would have occurred in the absence of compliance. The results show that while select developing countries experience growth benefits from complying with the TRIPs agreement, others do not, supporting the notion that there is a wide range of heterogeneity in the effects of IPR reforms on growth. These findings are robust when we account for marginal institutional changes in IPRs, enforcement of IPRs, and technological capacity in developing countries.

Evolution of the Chinese Intellectual Property Rights System: IPR Law Revisions and Enforcement

ABSTRACTSince the first Trademark Law was enacted in China in 1982, the Chinese intellectual property rights (IPR) system has undergone significant changes in both the design of the legislation and its enforcement. In this article, we analyze the evolution of IPR legislation and enforcement in China. To this end, we illustrate the evolutionary changes of the Chinese IPR system and analyze the changes introduced in four revisions (1992–1993, 2000–2001, 2008–2013, and 2019–2020). Our analysis shows that Patent Law, Trademark Law, and Copyright Law have been substantially enhanced, especially since 2000, when China improved its IPR system to comply with the TRIPS Agreement and join the WTO, and especially the most recent amendments of these three IP Laws. We discuss the number of IPR infringement cases handled by both relevant administrative authorities and courts to analyze IPR enforcement in China. Results indicate that the development of IPR protection enforcement followed the improvement of relevant IPR laws. The two revisions introduced after 2008, changes in the Chinese IPR system, and an increasing number of IPR infringement cases handled by relevant authorities also suggest the willingness of the Chinese government to further enhance its IPR protection.