TRIPS : A MORE DETAILED OVERVIEW OF THE TRIPS AGREEMENT

Overview: the TRIPS Agreement

The TRIPS Agreement, which came into eect on 1 January 1995, is to date the most
comprehensive multilateral agreement on intellectual property.

The areas of intellectual property that it covers are: copyright and related
rights (i.e. the rights of performers, producers of sound recordings and CONTENTS:
broadcasting organizations); trademarks including service marks; geographi- > General provisions
cal indications including appellations of origin; industrial designs; patents > Standards of pro-
including the protection of new varieties of plants; the layout-designs of in- tection
tegrated circuits; and undisclosed information including trade secrets and > Copyright
test data. > Related rights
The three main features of the Agreement are: > Trademarks
A Standards. In respect of each of the main areas of intellectual property covered by the > Geographical indi-
TRIPS Agreement, the Agreement sets out the minimum standards of protection to be cations
provided by each Member. Each of the main elements of protection is defined, namely > Industrial designs
the subject-matter to be protected, the rights to be conferred and permissible > Patents
exceptions to those rights, and the minimum duration of protection. The Agreement > Integrated circuits
sets these standards by requiring, first, that the substantive obligations of the main > Undisclosed infor-
conventions of the WIPO, the Paris Convention for the Protection of Industrial
mation
Property (Paris Convention) and the Berne Convention for the Protection of Literary
> Anti-competitive
and Artistic Works (Berne Convention) in their most recent versions, must be complied
licences
with. With the exception of the provisions of the Berne Convention on moral rights, all
the main substantive provisions of these conventions are incorporated by reference
and thus become obligations under the TRIPS Agreement between TRIPS Member > Enforcement (in-
countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS tel2b_e.htm#enforce-
Agreement, which relate, respectively, to the Paris Convention and to the Berne ment)
Convention. Secondly, the TRIPS Agreement adds a substantial number of additional > General obligations
obligations on matters where the pre-existing conventions are silent or were seen as (intel2b_e.htm#gener-
being inadequate. The TRIPS Agreement is thus sometimes referred to as a Berne and alobligs)
Paris-plus agreement. > Procedures and
A Enforcement. The second main set of provisions deals with domestic procedures and remedies (in-
remedies for the enforcement of intellectual property rights. The Agreement lays tel2b_e.htm#civiland)
down certain general principles applicable to all IPR enforcement procedures. In > Provisional mea-
addition, it contains provisions on civil and administrative procedures and remedies, sures (in-
provisional measures, special requirements related to border measures and criminal tel2b_e.htm#provisional)
 procedures, which specify, in a certain amount of detail, the procedures and remedies > Border measures (in-
that must be available so that right holders can eectively enforce their rights. tel2b_e.htm#specialre-
quire)
A Dispute settlement. The Agreement makes disputes between WTO Members about
the respect of the TRIPS obligations subject to the WTO's dispute settlement > Criminal procedures
procedures. (intel2b_e.htm#criminal)

In addition the Agreement provides for certain basic principles, such as national and
> Other provisions (in-
most-favoured-nation treatment, and some general rules to ensure that procedural
tel2c_e.htm#otherprovi-
diculties in acquiring or maintaining IPRs do not nullify the substantive benefits that
sions)
should flow from the Agreement. The obligations under the Agreement will apply equally
to all Member countries, but developing countries will have a longer period to phase them > Acquiring and main-
in. Special transition arrangements operate in the situation where a developing country taining rights (in-
does not presently provide product patent protection in the area of pharmaceuticals. tel2c_e.htm#aquisition)
> Transitional arrange-
The TRIPS Agreement is a minimum standards agreement, which allows Members to
provide more extensive protection of intellectual property if they so wish. Members are ments (in-
left free to determine the appropriate method of implementing the provisions of the tel2c_e.htm#transitional)
Agreement within their own legal system and practice. > Protecting existing
matter (in-
tel2c_e.htm#protec-
Certain general provisions tionofexisting)

As in the main pre-existing intellectual property conventions, the basic obligation on each
Member country is to accord the treatment in regard to the protection of intellectual
property provided for under the Agreement to the persons of other Members. Article 1.3
defines who these persons are. These persons are referred to as nationals but include
persons, natural or legal, who have a close attachment to other Members without
necessarily being nationals. The criteria for determining which persons must thus benefit
from the treatment provided for under the Agreement are those laid down for this
purpose in the main pre-existing intellectual property conventions of WIPO, applied of
course with respect to all WTO Members whether or not they are party to those
conventions. These conventions are the Paris Convention, the Berne Convention,
International Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations (Rome Convention), and the Treaty on Intellectual Property in
Respect of Integrated Circuits (IPIC Treaty).

Articles 3, 4 and 5 include the fundamental rules on national and most-favoured-nation

treatment of foreign nationals, which are common to all categories of intellectual
property covered by the Agreement. These obligations cover not only the substantive
standards of protection but also matters aecting the availability, acquisition, scope,
maintenance and enforcement of intellectual property rights as well as those matters
aecting the use of intellectual property rights specifically addressed in the Agreement.
While the national treatment clause forbids discrimination between a Member's own
nationals and the nationals of other Members, the most-favoured-nation treatment clause
forbids discrimination between the nationals of other Members. In respect of the national
treatment obligation, the exceptions allowed under the pre-existing intellectual property
conventions of WIPO are also allowed under TRIPS. Where these exceptions allow
material reciprocity, a consequential exception to MFN treatment is also permitted (e.g.
comparison of terms for copyright protection in excess of the minimum term required by
the TRIPS Agreement as provided under Article 7(8) of the Berne Convention as
incorporated into the TRIPS Agreement). Certain other limited exceptions to the MFN
obligation are also provided for.
The general goals of the TRIPS Agreement are contained in the Preamble of the
Agreement, which reproduces the basic Uruguay Round negotiating objectives
established in the TRIPS area by the 1986 Punta del Este Declaration and the 1988/89
Mid-Term Review. These objectives include the reduction of distortions and impediments
to international trade, promotion of eective and adequate protection of intellectual
property rights, and ensuring that measures and procedures to enforce intellectual
property rights do not themselves become barriers to legitimate trade. These objectives
should be read in conjunction with Article 7, entitled Objectives, according to which the
protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological knowledge
and in a manner conducive to social and economic welfare, and to a balance of rights and
obligations. Article 8, entitled Principles, recognizes the rights of Members to adopt
measures for public health and other public interest reasons and to prevent the abuse of
intellectual property rights, provided that such measures are consistent with the
provisions of the TRIPS Agreement.

Substantive standards of protection

Copyright

During the Uruguay Round negotiations, it was recognized that the Berne Convention
already, for the most part, provided adequate basic standards of copyright protection.
Thus it was agreed that the point of departure should be the existing level of protection
under the latest Act, the Paris Act of 1971, of that Convention. The point of departure is
expressed in Article 9.1 under which Members are obliged to comply with the substantive
provisions of the Paris Act of 1971 of the Berne Convention, i.e. Articles 1 through 21 of
the Berne Convention (1971) and the Appendix thereto. However, Members do not have
rights or obligations under the TRIPS Agreement in respect of the rights conferred under
Article 6bis of that Convention, i.e. the moral rights (the right to claim authorship and to
object to any derogatory action in relation to a work, which would be prejudicial to the
author's honour or reputation), or of the rights derived therefrom. The provisions of the
Berne Convention referred to deal with questions such as subject-matter to be protected,
minimum term of protection, and rights to be conferred and permissible limitations to
those rights. The Appendix allows developing countries, under certain conditions, to make
some limitations to the right of translation and the right of reproduction.

In addition to requiring compliance with the basic standards of the Berne Convention, the
TRIPS Agreement clarifies and adds certain specific points.

Article 9.2 confirms that copyright protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such.

Article 10.1 provides that computer programs, whether in source or object code, shall be
protected as literary works under the Berne Convention (1971). This provision confirms
that computer programs must be protected under copyright and that those provisions of
the Berne Convention that apply to literary works shall be applied also to them. It
confirms further, that the form in which a program is, whether in source or object code,
does not aect the protection. The obligation to protect computer programs as literary
works means e.g. that only those limitations that are applicable to literary works may be
applied to computer programs. It also confirms that the general term of protection of 50
years applies to computer programs. Possible shorter terms applicable to photographic
works and works of applied art may not be applied.

Article 10.2 clarifies that databases and other compilations of data or other material shall
be protected as such under copyright even where the databases include data that as such
are not protected under copyright. Databases are eligible for copyright protection
provided that they by reason of the selection or arrangement of their contents constitute
intellectual creations. The provision also confirms that databases have to be protected
regardless of which form they are in, whether machine readable or other form.
Furthermore, the provision clarifies that such protection shall not extend to the data or
material itself, and that it shall be without prejudice to any copyright subsisting in the data
or material itself.

Article 11 provides that authors shall have in respect of at least computer programs and, in
certain circumstances, of cinematographic works the right to authorize or to prohibit the
commercial rental to the public of originals or copies of their copyright works. With
respect to cinematographic works, the exclusive rental right is subject to the so-called
impairment test: a Member is excepted from the obligation unless such rental has led to
widespread copying of such works which is materially impairing the exclusive right of
reproduction conferred in that Member on authors and their successors in title. In respect
of computer programs, the obligation does not apply to rentals where the program itself
is not the essential object of the rental.

According to the general rule contained in Article 7(1) of the Berne Convention as
incorporated into the TRIPS Agreement, the term of protection shall be the life of the
author and 50 years after his death. Paragraphs 2 through 4 of that Article specifically
allow shorter terms in certain cases. These provisions are supplemented by Article 12 of
the TRIPS Agreement, which provides that whenever the term of protection of a work,
other than a photographic work or a work of applied art, is calculated on a basis other
than the life of a natural person, such term shall be no less than 50 years from the end of
the calendar year of authorized publication, or, failing such authorized publication within
50 years from the making of the work, 50 years from the end of the calendar year of
making.

Article 13 requires Members to confine limitations or exceptions to exclusive rights to

certain special cases which do not conflict with a normal exploitation of the work and do
not unreasonably prejudice the legitimate interests of the right holder. This is a horizontal
provision that applies to all limitations and exceptions permitted under the provisions of
the Berne Convention and the Appendix thereto as incorporated into the TRIPS
Agreement. The application of these limitations is permitted also under the TRIPS
Agreement, but the provision makes it clear that they must be applied in a manner that
does not prejudice the legitimate interests of the right holder.

Related rights

The provisions on protection of performers, producers of phonograms and broadcasting

organizations are included in Article 14. According to Article 14.1, performers shall have
the possibility of preventing the unauthorized fixation of their performance on a
phonogram (e.g. the recording of a live musical performance). The fixation right covers
only aural, not audiovisual fixations. Performers must also be in position to prevent the
reproduction of such fixations. They shall also have the possibility of preventing the
unauthorized broadcasting by wireless means and the communication to the public of
their live performance.
In accordance with Article 14.2, Members have to grant producers of phonograms an
exclusive reproduction right. In addition to this, they have to grant, in accordance with
Article 14.4, an exclusive rental right at least to producers of phonograms. The provisions
on rental rights apply also to any other right holders in phonograms as determined in
national law. This right has the same scope as the rental right in respect of computer
programs. Therefore it is not subject to the impairment test as in respect of
cinematographic works. However, it is limited by a so-called grand-fathering clause,
according to which a Member, which on 15 April 1994, i.e. the date of the signature of the
Marrakesh Agreement, had in force a system of equitable remuneration of right holders in
respect of the rental of phonograms, may maintain such system provided that the
commercial rental of phonograms is not giving rise to the material impairment of the
exclusive rights of reproduction of right holders.

Broadcasting organizations shall have, in accordance with Article 14.3, the right to prohibit
the unauthorized fixation, the reproduction of fixations, and the rebroadcasting by
wireless means of broadcasts, as well as the communication to the public of their
television broadcasts. However, it is not necessary to grant such rights to broadcasting
organizations, if owners of copyright in the subject-matter of broadcasts are provided
with the possibility of preventing these acts, subject to the provisions of the Berne
Convention.

The term of protection is at least 50 years for performers and producers of phonograms,
and 20 years for broadcasting organizations (Article 14.5).

Article 14.6 provides that any Member may, in relation to the protection of performers,
producers of phonograms and broadcasting organizations, provide for conditions,
limitations, exceptions and reservations to the extent permitted by the Rome Convention.

Trademarks

The basic rule contained in Article 15 is that any sign, or any combination of signs, capable
of distinguishing the goods and services of one undertaking from those of other
undertakings, must be eligible for registration as a trademark, provided that it is visually
perceptible. Such signs, in particular words including personal names, letters, numerals,
figurative elements and combinations of colours as well as any combination of such signs,
must be eligible for registration as trademarks.

Where signs are not inherently capable of distinguishing the relevant goods or services,
Member countries are allowed to require, as an additional condition for eligibility for
registration as a trademark, that distinctiveness has been acquired through use. Members
are free to determine whether to allow the registration of signs that are not visually
perceptible (e.g. sound or smell marks).

Members may make registrability depend on use. However, actual use of a trademark shall
not be permitted as a condition for filing an application for registration, and at least three
years must have passed after that filing date before failure to realize an intent to use is
allowed as the ground for refusing the application (Article 14.3).

The Agreement requires service marks to be protected in the same way as marks
distinguishing goods (see e.g. Articles 15.1, 16.2 and 62.3).

The owner of a registered trademark must be granted the exclusive right to prevent all
third parties not having the owner's consent from using in the course of trade identical or
similar signs for goods or services which are identical or similar to those in respect of
which the trademark is registered where such use would result in a likelihood of
confusion. In case of the use of an identical sign for identical goods or services, a
likelihood of confusion must be presumed (Article 16.1).

The TRIPS Agreement contains certain provisions on well-known marks, which

supplement the protection required by Article 6bis of the Paris Convention, as
incorporated by reference into the TRIPS Agreement, which obliges Members to refuse or
to cancel the registration, and to prohibit the use of a mark conflicting with a mark which
is well known. First, the provisions of that Article must be applied also to services. Second,
it is required that knowledge in the relevant sector of the public acquired not only as a
result of the use of the mark but also by other means, including as a result of its
promotion, be taken into account. Furthermore, the protection of registered well-known
marks must extend to goods or services which are not similar to those in respect of which
the trademark has been registered, provided that its use would indicate a connection
between those goods or services and the owner of the registered trademark, and the
interests of the owner are likely to be damaged by such use (Articles 16.2 and 3).

Members may provide limited exceptions to the rights conferred by a trademark, such as
fair use of descriptive terms, provided that such exceptions take account of the legitimate
interests of the owner of the trademark and of third parties (Article 17).

Initial registration, and each renewal of registration, of a trademark shall be for a term of
no less than seven years. The registration of a trademark shall be renewable indefinitely
(Article 18).

Cancellation of a mark on the grounds of non-use cannot take place before three years of
uninterrupted non-use has elapsed unless valid reasons based on the existence of
obstacles to such use are shown by the trademark owner. Circumstances arising
independently of the will of the owner of the trademark, such as import restrictions or
other government restrictions, shall be recognized as valid reasons of non-use. Use of a
trademark by another person, when subject to the control of its owner, must be
recognized as use of the trademark for the purpose of maintaining the registration
(Article 19).

It is further required that use of the trademark in the course of trade shall not be
unjustifiably encumbered by special requirements, such as use with another trademark,
use in a special form, or use in a manner detrimental to its capability to distinguish the
goods or services (Article 20).

Geographical indications

Geographical indications are defined, for the purposes of the Agreement, as indications
which identify a good as originating in the territory of a Member, or a region or locality in
that territory, where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin (Article 22.1). Thus, this definition
specifies that the quality, reputation or other characteristics of a good can each be a
sucient basis for eligibility as a geographical indication, where they are essentially
attributable to the geographical origin of the good.

In respect of all geographical indications, interested parties must have legal means to
prevent use of indications which mislead the public as to the geographical origin of the
good, and use which constitutes an act of unfair competition within the meaning of
Article 10bis of the Paris Convention (Article 22.2).
The registration of a trademark which uses a geographical indication in a way that
misleads the public as to the true place of origin must be refused or invalidated ex ocio
if the legislation so permits or at the request of an interested party (Article 22.3).

Article 23 provides that interested parties must have the legal means to prevent the use of
a geographical indication identifying wines for wines not originating in the place indicated
by the geographical indication. This applies even where the public is not being misled,
there is no unfair competition and the true origin of the good is indicated or the
geographical indication is accompanied be expressions such as kind, type, style,
imitation or the like. Similar protection must be given to geographical indications
identifying spirits when used on spirits. Protection against registration of a trademark must
be provided accordingly.

Article 24 contains a number of exceptions to the protection of geographical indications.

These exceptions are of particular relevance in respect of the additional protection for
geographical indications for wines and spirits. For example, Members are not obliged to
bring a geographical indication under protection, where it has become a generic term for
describing the product in question (paragraph 6). Measures to implement these provisions
shall not prejudice prior trademark rights that have been acquired in good faith (paragraph
5). Under certain circumstances, continued use of a geographical indication for wines or
spirits may be allowed on a scale and nature as before (paragraph 4). Members availing
themselves of the use of these exceptions must be willing to enter into negotiations about
their continued application to individual geographical indications (paragraph 1). The
exceptions cannot be used to diminish the protection of geographical indications that
existed prior to the entry into force of the TRIPS Agreement (paragraph 3). The TRIPS
Council shall keep under review the application of the provisions on the protection of
geographical indications (paragraph 2).

Industrial designs

Article 25.1 of the TRIPS Agreement obliges Members to provide for the protection of
independently created industrial designs that are new or original. Members may provide
that designs are not new or original if they do not significantly dier from known designs
or combinations of known design features. Members may provide that such protection
shall not extend to designs dictated essentially by technical or functional considerations.

Article 25.2 contains a special provision aimed at taking into account the short life cycle
and sheer number of new designs in the textile sector: requirements for securing
protection of such designs, in particular in regard to any cost, examination or publication,
must not unreasonably impair the opportunity to seek and obtain such protection.
Members are free to meet this obligation through industrial design law or through
copyright law.

Article 26.1 requires Members to grant the owner of a protected industrial design the right
to prevent third parties not having the owner's consent from making, selling or importing
articles bearing or embodying a design which is a copy, or substantially a copy, of the
protected design, when such acts are undertaken for commercial purposes.

Article 26.2 allows Members to provide limited exceptions to the protection of industrial
designs, provided that such exceptions do not unreasonably conflict with the normal
exploitation of protected industrial designs and do not unreasonably prejudice the
legitimate interests of the owner of the protected design, taking account of the legitimate
interests of third parties.
The duration of protection available shall amount to at least 10 years (Article 26.3). The
wording amount to allows the term to be divided into, for example, two periods of five
years.

Patents

The TRIPS Agreement requires Member countries to make patents available for any
inventions, whether products or processes, in all fields of technology without
discrimination, subject to the normal tests of novelty, inventiveness and industrial
applicability. It is also required that patents be available and patent rights enjoyable
without discrimination as to the place of invention and whether products are imported or
locally produced (Article 27.1).

There are three permissible exceptions to the basic rule on patentability. One is for
inventions contrary to ordre public or morality; this explicitly includes inventions
dangerous to human, animal or plant life or health or seriously prejudicial to the
environment. The use of this exception is subject to the condition that the commercial
exploitation of the invention must also be prevented and this prevention must be
necessary for the protection of ordre public or morality (Article 27.2).

The second exception is that Members may exclude from patentability diagnostic,
therapeutic and surgical methods for the treatment of humans or animals (Article 27.3(a)).

The third is that Members may exclude plants and animals other than micro-organisms
and essentially biological processes for the production of plants or animals other than
non-biological and microbiological processes. However, any country excluding plant
varieties from patent protection must provide an eective sui generis system of
protection. Moreover, the whole provision is subject to review four years after entry into
force of the Agreement (Article 27.3(b)).

The exclusive rights that must be conferred by a product patent are the ones of making,
using, oering for sale, selling, and importing for these purposes. Process patent
protection must give rights not only over use of the process but also over products
obtained directly by the process. Patent owners shall also have the right to assign, or
transfer by succession, the patent and to conclude licensing contracts (Article 28).

Members may provide limited exceptions to the exclusive rights conferred by a patent,
provided that such exceptions do not unreasonably conflict with a normal exploitation of
the patent and do not unreasonably prejudice the legitimate interests of the patent owner,
taking account of the legitimate interests of third parties (Article 30).

The term of protection available shall not end before the expiration of a period of 20 years
counted from the filing date (Article 33).

Members shall require that an applicant for a patent shall disclose the invention in a
manner suciently clear and complete for the invention to be carried out by a person
skilled in the art and may require the applicant to indicate the best mode for carrying out
the invention known to the inventor at the filing date or, where priority is claimed, at the
priority date of the application (Article 29.1).

If the subject-matter of a patent is a process for obtaining a product, the judicial

authorities shall have the authority to order the defendant to prove that the process to
obtain an identical product is dierent from the patented process, where certain
conditions indicating a likelihood that the protected process was used are met (Article 34).
Compulsory licensing and government use without the authorization of the right holder
are allowed, but are made subject to conditions aimed at protecting the legitimate
interests of the right holder. The conditions are mainly contained in Article 31. These
include the obligation, as a general rule, to grant such licences only if an unsuccessful
attempt has been made to acquire a voluntary licence on reasonable terms and
conditions within a reasonable period of time; the requirement to pay adequate
remuneration in the circumstances of each case, taking into account the economic value
of the licence; and a requirement that decisions be subject to judicial or other
independent review by a distinct higher authority. Certain of these conditions are relaxed
where compulsory licences are employed to remedy practices that have been established
as anticompetitive by a legal process. These conditions should be read together with the
related provisions of Article 27.1, which require that patent rights shall be enjoyable
without discrimination as to the field of technology, and whether products are imported
or locally produced.

Layout-designs of integrated circuits

Article 35 of the TRIPS Agreement requires Member countries to protect the layout-
designs of integrated circuits in accordance with the provisions of the IPIC Treaty (the
Treaty on Intellectual Property in Respect of Integrated Circuits), negotiated under the
auspices of WIPO in 1989. These provisions deal with, inter alia, the definitions of
integrated circuit and layout-design (topography), requirements for protection,
exclusive rights, and limitations, as well as exploitation, registration and disclosure. An
integrated circuit means a product, in its final form or an intermediate form, in which the
elements, at least one of which is an active element, and some or all of the
interconnections are integrally formed in and/or on a piece of material and which is
intended to perform an electronic function. A layout-design (topography) is defined as
the three-dimensional disposition, however expressed, of the elements, at least one of
which is an active element, and of some or all of the interconnections of an integrated
circuit, or such a three-dimensional disposition prepared for an integrated circuit intended
for manufacture. The obligation to protect layout-designs applies to such layout-designs
that are original in the sense that they are the result of their creators' own intellectual
eort and are not commonplace among creators of layout-designs and manufacturers of
integrated circuits at the time of their creation. The exclusive rights include the right of
reproduction and the right of importation, sale and other distribution for commercial
purposes. Certain limitations to these rights are provided for.

In addition to requiring Member countries to protect the layout-designs of integrated

circuits in accordance with the provisions of the IPIC Treaty, the TRIPS Agreement clarifies
and/or builds on four points. These points relate to the term of protection (ten years
instead of eight, Article 38), the applicability of the protection to articles containing
infringing integrated circuits (last sub clause of Article 36) and the treatment of innocent
infringers (Article 37.1). The conditions in Article 31 of the TRIPS Agreement apply mutatis
mutandis to compulsory or non-voluntary licensing of a layout-design or to its use by or
for the government without the authorization of the right holder, instead of the provisions
of the IPIC Treaty on compulsory licensing (Article 37.2).

Protection of undisclosed information

The TRIPS Agreement requires undisclosed information -- trade secrets or know-how --

to benefit from protection. According to Article 39.2, the protection must apply to
information that is secret, that has commercial value because it is secret and that has
been subject to reasonable steps to keep it secret. The Agreement does not require
undisclosed information to be treated as a form of property, but it does require that a
person lawfully in control of such information must have the possibility of preventing it
from being disclosed to, acquired by, or used by others without his or her consent in a
manner contrary to honest commercial practices. Manner contrary to honest
commercial practices includes breach of contract, breach of confidence and inducement
to breach, as well as the acquisition of undisclosed information by third parties who knew,
or were grossly negligent in failing to know, that such practices were involved in the
acquisition.

The Agreement also contains provisions on undisclosed test data and other data whose
submission is required by governments as a condition of approving the marketing of
pharmaceutical or agricultural chemical products which use new chemical entities. In
such a situation the Member government concerned must protect the data against unfair
commercial use. In addition, Members must protect such data against disclosure, except
where necessary to protect the public, or unless steps are taken to ensure that the data
are protected against unfair commercial use.

Control of anti-competitive practices in contractual licences

Article 40 of the TRIPS Agreement recognizes that some licensing practices or conditions
pertaining to intellectual property rights which restrain competition may have adverse
eects on trade and may impede the transfer and dissemination of technology (paragraph
1). Member countries may adopt, consistently with the other provisions of the Agreement,
appropriate measures to prevent or control practices in the licensing of intellectual
property rights which are abusive and anti-competitive (paragraph 2). The Agreement
provides for a mechanism whereby a country seeking to take action against such
practices involving the companies of another Member country can enter into
consultations with that other Member and exchange publicly available non-confidential
information of relevance to the matter in question and of other information available to
that Member, subject to domestic law and to the conclusion of mutually satisfactory
agreements concerning the safeguarding of its confidentiality by the requesting Member
(paragraph 3). Similarly, a country whose companies are subject to such action in another
Member can enter into consultations with that Member (paragraph 4).