The Significance of International Intellectual Property
Definitions and Context
According to the World Intellectual Property Organisation (WIPO), intellectual property “refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce” (WIPO 2005).
This is similar to the definition used by the WTO, which states that “Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time” (World Trade Organisation 2005a). These definitions emphasise the origins of intellectual property in the mind of the creator or inventor. It is clear that intellectual property can include various categories of rights, apart from the traditional protection for copyright, trademark and patent. Indeed the TRIPS Agreement is exhaustive in its approach to the IP rights covered by the Agreement. TRIPS Article 1(2) provides that “for the purposes of this Agreement, the term ‘intellectual property’ refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II” (World Trade Organisation 1994). Therefore, the TRIPS Agreement covers a total of seven areas of intellectual property:
- • Copyright and related rights (Part II(1));
- • Trademarks (Part II(2));
- • Geographical indications (Part II(3));
- • Industrial designs (Part II(4));
- • Patents (Part II(5));
- • Layout designs (Topographies) of integrated circuits (Part II(6));
- • Protection of undisclosed information (Part II(7)).
Consequently, for the sake of brevity, intellectual property or IP shall be referred to throughout this book, but it should be borne in mind that the definition of intellectual property that is used is the broad definition above, as used in the TRIPS Agreement.
In order to appreciate the significance of the TRIPS Agreement in terms of international intellectual property protection, it is necessary to first understand the origins of intellectual property rights. Intellectual property protection began around the time of widespread industrialisation across Europe, although the recognition of marks of ownership clearly existed long before this period. Indeed, one of the first known references to intellectual property protection dates from 500 BC when chefs were granted year-long monopolies for creating culinary delights in the Greek colony of Sybaris (Moore 2001, p. 9). However, a recognised system of intellectual property protection was not formally introduced until much later. Patents came into existence in Venice around 1500 and had spread to most of the main European powers by 1550 (Ostergard 2003, p. 12). The first formal patent system in Venice was highly significant as “for the first time a legal and institutional form of intellectual property rights established the ownership of knowledge and was explicitly utilized to promote innovation” (May and Sell 2006, p. 58). The origins of copyright, on the other hand, trace to the establishment of printing; copyright emerged from a concern to control this new technology. This concern led to the world’s first copyright act, the Statute of Anne in 1710, entitled “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned” (Goldstein 2001, p. 5). Furthermore, early legislative developments in Britain in the seventeenth and eighteenth centuries covering intellectual property are frequently seen as the dawn of modern intellectual property law (May and Sell 2006, p. 73).
Various countries enacted intellectual property laws over the next century, but it was not until the late nineteenth century that international intellectual property protection was considered necessary. This need “became evident when foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be stolen and exploited commercially in other countries” (WIPO 2006). This led to the Paris Convention for the Protection of Industrial Property in 1883, which was the first international agreement to deal with IP rights (WIPO 2016b). This was followed by the Berne Convention for the Protection of Literary and Artistic Works of 1886, which dealt specifically with creative works such as books, plays and music (WIPO 2016c).1 These two international conventions originally had few signatories, but included a secretariat from the outset. The Paris Convention had 14 initial member countries when it came into force in 1884 (WIPO 2004, p. 241) and the Berne Convention had eight original members in 1887. The respective secretariats merged in 1893 and eventually became the World Intellectual Property Organisation (WIPO) in 1967, which then became part of the United Nations (UN) system of specialised agencies in 1974 (WIPO 2004, p. 5).
Hence, intellectual property has a long history of protection at an international level, but the WIPO-administered system was widely criticised as insufficient as IP began to grow in importance in the 1970s and 1980s. Thus, it was proposed that intellectual property protection be incorporated into the existing multilateral trading system under the General Agreement on Tariffs and Trade (GATT) 1947. Therefore, the development of intellectual property protection could be said to have three distinct phases: national, from the fifteenth to the late nineteenth century; international, from the passing of the Paris and Berne Conventions in the 1880s until the final decades of the twentieth century; and global, from the inclusion of IP in the multilateral trading system with the establishment of the TRIPS framework in 1994. As a result, the TRIPS Agreement can be seen as highly significant from the perspective of the historical evolution of IP protection as it began a new phase of development—that of global protection.
Although the Paris and Berne Conventions were significant at the time they were agreed for embodying the principles of non-discrimination and national treatment, they “neither created new substantive law nor imposed new laws on member states; rather, they reflected a consensus among member states that was legitimated by domestic laws already in place” (Sell 2003, pp. 10-1). Accordingly, the Conventions allowed wide variation in IP protection offered by the signatories and recognised that different countries may require different levels of IP protection according to their different levels of economic development. As the TRIPS Agreement downplays this inherent flexibility in favour of the promotion of universality, it is indeed a significant step in the progression of IP protection, and its inclusion in the GATT/WTO system will now be examined in more detail.