Intellectual Property Rights And International Trade

(I) intellectual property is an important part of international trade: pfer of technology, the pfer of the right to use patents and trademarks; copyright licenses to enable copyright owners to obtain income; the proportion of products containing intellectual property in international trade is increasing, such as new drugs and other high-tech products, films, music, books, computer software, famous brand commodities, new plant varieties and so on.

In 1992, the United States only used computer software as a copyright protection object, with a trade volume of US $7 billion 600 million.

Of course, from the absolute number of international trade, the pfer of intangible intellectual property is far less than the sale of tangible goods.

But the volume of intellectual property trade is rising faster than the sale of goods.

(two) intellectual property protection is conducive to the development of international trade.

Infringing intellectual property rights, counterfeiting trademarks, pirating books and films have affected normal trade and caused unnecessary obstacles to trade.

The Uruguay round has included intellectual property rights in the subject of trade negotiations. WTO, including intellectual property rights, is considered a major breakthrough in GATT.

(three) the special pressure of international protection objects on intellectual property rights to developing countries: from drugs to chemical industries, from imitation to independent development, enterprises will increase their royalties.

Two, the process and main characteristics of TRIPS.

(1) background

In recent years, people are more and more aware of the impact of intellectual property protection on international trade.

First of all, the economic activities of most developed countries are turning to scientific research and technology intensive. Their traditional export products, such as chemical fertilizers and pharmaceuticals, and new export products (such as telecommunications equipment, computers and software) contain more technology and creativity, that is, intellectual property rights.

Therefore, manufacturers especially hope that intellectual property rights in their products can be adequately protected in order to recover the cost of development and research.

Secondly, a large number of developing countries have removed restrictions on foreign investment, and foreign countries have the opportunity to produce products containing patents through joint ventures or licensing agreements.

However, such investments in developed countries depend on whether these countries can effectively protect their intellectual property rights.

Thirdly, technology improves products and makes copying and imitation easier and cheaper.

Such countries that fail to protect intellectual property rights not only produce counterfeit and pirated goods, but also export them.

Before the WTO's agreement on trade related aspects of intellectual property rights (TRIPS), some conventions already had international protection for intellectual property rights, such as the Paris Convention (industrial property), the Berne Convention (copyright), the Rome Convention (adjacency right) and the intellectual property Treaty on integrated circuits.

However, most exporters of intellectual property products are not satisfied with the existing conventions.

They believe that the Paris convention stipulates the minimum protection period for patents, that there is no special international treaty for the protection of trade secrets, that international protection should be strengthened for computer software and recording products, and that the existing conventions are not effective enough to deal with counterfeit goods.

In addition, they also asked for an effective dispute settlement mechanism to deal with issues related to intellectual property rights.

The GATT in 1947 also touched on the issue of intellectual property rights.

Theoretically speaking, the GATT national treatment (third articles), the most favored nation treatment (first), pparency (tenth) and loss or damage of interests (twenty-third) can be applied to the protection of intellectual property rights.

However, the terms and contents of intellectual property directly mentioned in GATT are very limited. Only the origin mark (Ninth articles) requires parties to stop the act of abusing the marks of origin. The quota for the purpose of balance of payments is not violated by intellectual property laws (twelfth, third, eighteenth, tenth). General exceptions (Twentieth, fourth) stipulate that measures to protect intellectual property rights should be non discriminatory.

It can be said that intellectual property rights protection does not have clear rules in GATT.

The issue of intellectual property rights in GATT is mainly the trade of counterfeit goods.

Negotiations on this issue began in the Tokyo round. The United States had proposed a draft code, but failed to reach an agreement.

The issue of counterfeiting trade was first included in the GATT agenda in November 1982. Ministers asked the Council to decide whether it is appropriate to take joint action against counterfeit goods under the GATT framework, and if appropriate, what actions should be taken.

In 1985, the expert group set up by the Council concluded that the trade in counterfeit goods is becoming more and more serious and multilateral action should be taken.

But whether GATT is the appropriate place to solve this problem is controversial. Therefore, there are two opposing camps in developed and developing countries.

The developed countries represented by the United States and Switzerland advocated that intellectual property rights should be included in the multilateral negotiations.

The representative of the United States even suggested that the United States would refuse to participate in the eighth round of negotiations if intellectual property rights were not considered as a new topic.

In addition, developed countries also advocated that all intellectual property rights standards should be formulated, and intellectual property rights must be protected through the WTO dispute settlement mechanism.

The developing countries represented by India, Brazil, Egypt, Argentina and Yugoslavia consider that the protection of intellectual property rights is the task of the world intellectual property organization. The trade in counterfeiting commodities should be separated from the extensive protection of intellectual property rights.

Developing countries worry that protecting intellectual property rights will constitute a barrier to legitimate trade. Strengthening the protection of intellectual property rights is conducive to the monopoly of pnational corporations, raising the prices of drugs and food, thereby adversely affecting the welfare of the public.

Until the start of the Uruguay round of negotiations in 1986, countries did not agree on whether intellectual property rights should be included in the negotiations.

Thus, from the political and technical point of view, the issue of intellectual property rights is one of the most difficult issues in the Uruguay Round negotiations.

However, in September 1986, the Ministerial Declaration of the Uruguay Round negotiations decided that the GATT parties should negotiate a multilateral agreement to determine the principles and rules of intellectual property protection so as to promote the development of intellectual property rights and make the enforcement level of intellectual property rights not a barrier to fair trade.

Judging from the whole situation of the negotiations, the main contents of the two sides' disputes are:

(1) standards for protection

The most difficult question is how the rules should be formulated, that is, if an agreement is made to determine the substantive standards for the protection of intellectual property rights, can the parties to the GATT accept it?

Some developing countries worry that the new standard of intellectual property rights will mean that the interests of intellectual property owners are above the social and development needs of low-income countries.

(2) stop unilateral sanctions.

Over the years, some developed countries, especially the United States, have often threatened trade retaliation against so-called so-called intellectual property rights in Southeast Asia, Latin America and some developed countries.

Countries threatened by trade retaliation believe that if they want to sign the agreement on intellectual property rights, developed countries with unilateral sanctions must abandon the use of unilateral trade sanctions to solve the problem of intellectual property rights.

They want to ensure that the multilateral dispute settlement approach provided by the IP agreement can replace the unilateral approach, not just the unilateral approach.

In 1990, the GATT expert group made a ruling that the US patent infringement provisions were discriminatory, but the United States refused to amend its laws.

(3) restrictions on Restrictive Business Practices

The agreement on intellectual property rights negotiations is not about freer trade, but about more protection.

Intellectual property rights such as patents and copyrights provide a temporary monopoly to inventors or authors. Others can not use their inventions or copy their works without paying.

Developing countries require large companies not to abuse their exclusive rights, thereby undermining the interests of developing countries.

(4) pitional period

It takes time to change domestic legislation.

Intellectual property agreements require some countries to make major changes to intellectual property laws and practices, because piracy and counterfeiting have become a "new" industry in these countries.

Therefore, these countries need more time to make these changes.

(5) whether the agreement on intellectual property rights should be a GATT agreement.

Some developing countries are worried that GATT is not a place to establish intellectual property rights. This work should be referred to the World Intellectual Property Organization (iwipo), which manages about 20 Intellectual Property Conventions.

The developed countries want a strong convention.

They believe that even if such a convention is limited, it will be better than the low level convention that everyone has participated in.

In 1991, the director general of GATT proposed the framework of the final draft of the Uruguay round, and the agreement on intellectual property rights related to trade, including counterfeit goods trade, was basically approved.

Since the agreement undoubtedly includes counterfeit trade, the concept of the agreement does not appear at the end of the agreement.

The main reasons for the acceptance of intellectual property agreements in developing countries are: (1) the Uruguay Round Agreement as a package deal includes some things that the developers hope to get, such as the return of Textile Agreements, the trade in services agreement, and the strengthened dispute settlement mechanism. Therefore, the acceptance of intellectual property agreements is a kind of exchange. (2) many developing countries have introduced large quantities of foreign capital since 80s, which needs to strengthen the protection of intellectual property rights; (3) unilateral threats such as the United States, the longer pition period agreed by developed countries to developing countries, and the worry that the United States Congress will not approve the package agreements because of the absence of intellectual property rights agreements, and so on, has also played a role.

(two) status

The agreement on intellectual property rights has special significance in WTO: (1) it differs from multilateral goods trade and service trade agreement: the first two agreements are agreements on general rules and principles related to trade policy, and have made commitments to liberalization of various countries, but have not sought the harmonization of policies of all countries; and intellectual property agreements include the minimum standards of intellectual property protection that all members must achieve.

(2) intellectual property agreements require members to take active actions to protect intellectual property rights, which are different from those of the first two agreements.

This proves that under the framework of multilateral trade, we can seek coordination and unification, that is, formulate minimum standards to influence trade policies and management systems.

The formation of intellectual property agreements is obvious to the interests of developed countries.

For example, the pharmaceutical industry, entertainment industry and information industry in the United States basically get what they expect when negotiations start, because the agreement on intellectual property rights is a substantive obligation with few loopholes: it establishes the minimum standards for protecting intellectual property rights and the obligation to implement the standards, and establishes an effective multilateral dispute settlement process.

The impact of intellectual property agreements on developing countries is unclear.

Some have concluded that this agreement will enable wealth to flow from developing countries to developed countries.

However, more people believe that intellectual property protection is closely related to economic development and international trade. Strengthening protection is the general trend. Developing countries will eventually benefit from intellectual property protection after overcoming short-term difficulties.