Norms on the protection and enforcement of Intellectual Property Rights (IPRs) are set out in international conventions (treaties), as well as regional legal instruments (for example EU Regulations and Directives), and national legislation.
”Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement” (Article 1.1 TRIPS). Aforementioned is the minimum harmonization rational set by WIPO/WTO/TRIPS for international treaties and conventions pertinent to IPR’s.
The TRIPS Agreement is one of the three main pillars of the WTO resulting from the Uruguay Round negotiations in the form of a “single undertaking”. It came into effect on 1 January 1995. With over 120 countries signatories that jointly contribute to more than 90 per cent of world trade.[1] The agreement has had an implementation period of 1 year for industrialized countries and up to 11 years for developing countries /economies. This deadline for developing countries was extended to 2005 and then to 2013.
It makes the protection of intellectual property rights a fundamental part of the multilateral trading system, as embodied in the WTO. In order for countries to become a part of the WTO they must first agree to comply with, or ratify the TRIPS agreement and all of the provisions therein. The Trips agreement obliges all WTO member countries to comply with the main conventions of the WIPO, a few of which are the Paris Convention on industrial property, and the Berne Convention on Copyright (in their updated and revised versions).
To answer the question at hand, the TRIPS is referred to as “Berne and Paris-plus” Agreement as it presents additional or supplementary obligations which are not presented in the Berne Convention and the Paris Convention. These provisions that are not dealt with thoroughly under the Berne and Paris Conventions are the basis core principles of the WTO rationale under Part I: General Provisions and Basic Principles Articles 1 to 9. Articles 7 and 8 Respectively i.e.
Article 7 Objectives
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 Principles
1. Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote 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.
Important to note is that the aforementioned international conventions set minimum standards in relation to IPR for WTO Members. Article 2 states and also that nothing in Parts I to IV of the agreement shall derogate from existing obligations that members may have to each other under the Paris Convention, the Berne Convention, and the Rome Convention. [2] Some of the main principles within the agreement are National treatment (Article 3 of GATT, Article 17 of GATS and Article 3 of TRIPS), although once again the principle is handled slightly differently in each of these. National treatment only applies once a product, service or item of intellectual property has entered the market) Most-favoured nation Treatment principle under Article 4 requiring equal treatment of all countries. The relevant provisions are to be found in Articles 2.1 and 9.1 of the TRIPS Agreement, which relate, respectively, to the Paris Convention and to the Berne Convention.
In contrast to the provisions in the Berne Convention and the Paris Convention, the Trips agreement goes further in that it encapsulates IPR enforcement mechanisms adds, a substantial number of additional obligations on matters where the pre-existing conventions are silent or were seen as being inadequate.
Scholars state that “the earlier [to introduction of TRIP] multilateral system[Berne and Paris conventions] had lacked, among other things, an overarching set of principled objectives to guide the development of meaningfully balanced international copyright norms” [3] The TRIPS agreement deepens the economic integration and the institutional linkages that once used to lack in pre-TRIPS copyright regime standing alone. Today, the combined effect of the TRIPS Agreement, the World Intellectual Property Organization’s (WIPO) Copyright Treaty11 (WCT), Performances and Phonograms Treaty12 (WPPT), and bilateral and regional free trade agreements (FTAs) have shaped widespread substantive rules to protect creative expression on an gradually uniform legal foundation.[4]
The TRIPS consists of an institutional apparatus to screen enforcement of important principles, provide a forum to discuss issues of policy and implementation arising from the Agreement, a dispute resolution mechanism, and a comprehensive organizational framework in which norms, standards and policy prescriptions can be negotiated in coordination with trade rules.[5] In relation to Copyrights, most notably, the 3-step test has been included in several subsequent international IP conventions, most notably in Article 13 of TRIPS. The language of the 3-step test has evolved since its Berne beginnings. While Berne Article 9.2 only applies to reproduction rights, Article 13 in TRIPS does not specify a particular category of rights to which it may apply, leaving it open to cover copyright more broadly. Under Berne Article 9.2, the 3-step test is defined as the following: “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.” Hence, another addition to the pre-existing legislation prior or pre-TRIPS agreement.
Many other sections can and may be compared but to answer the questions, TRIPS agreement came about as an addition and supplement to the Berne (related to Copyrights) and Paris convention (related to all other rights (IPR)) as there was a need for more defined, precise and rigorous provisions regulating IPR’s internationally which the pre-existing Berne and Paris did not cover. This was also seen as a reason for Member states of the WTO to create their own FTA’s, which I touch upon in the next answer.
[1] https://unctad.org/system/files/official-document/iteipc200610_en.pdf [2] https://www.wto.org/english/tratop_e/trips_e/tripfq_e.htm [3] https://unctad.org/system/files/official-document/iteipc200610_en.pdf [4] https://unctad.org/system/files/official-document/iteipc200610_en.pdf [5] https://unctad.org/system/files/official-document/iteipc200610_en.pdf
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