Agreement on Trade-Related Aspects of Intellectual Property Rights

TRIPS emerged from the Uruguay Round of multilateral trade negotiations (1986–1994), driven largely by the United States, the European Community, and Japan, which sought to curb what they saw as inadequate IP protection in developing countries. The agreement was a response to the perceived failure of existing WIPO-administered conventions to provide effective enforcement mechanisms. Developing countries, initially resistant, agreed to TRIPS in exchange for concessions in agriculture and textiles. The final text, signed in Marrakesh on 15 April 1994, established the WTO and made TRIPS one of its three pillars, alongside goods (GATT) and services (GATS).¹

TRIPS sets out minimum standards for IP protection, requiring members to comply with the substantive provisions of the Paris Convention (1967) and the Berne Convention (1971), while adding new obligations. It mandates patent protection for any invention, product or process, in all fields of technology, for at least 20 years from filing. Copyright protection must last at least 50 years after the author's death, and computer programs are protected as literary works. The agreement also protects geographical indications, industrial designs, and undisclosed test data. Enforcement provisions require members to provide civil, administrative, and criminal remedies, as well as border measures to prevent the importation of counterfeit goods.²

TRIPS includes several flexibilities that allow members to balance IP protection with public policy objectives. Article 8 permits measures to protect public health and nutrition, and Article 31 allows compulsory licensing of patents without the right holder's authorization under certain conditions. The Doha Declaration on TRIPS and Public Health (2001) clarified that these flexibilities can be used to address public health crises, particularly HIV/AIDS, and allowed countries with insufficient manufacturing capacity to import generic medicines under a special system (Article 31bis, effective 2017). These provisions have been used by countries like India and Brazil to produce affordable antiretroviral drugs.

Beyond its well-known provisions, TRIPS has several lesser-known dimensions. It requires WTO members to provide protection for geographical indications for wines and spirits at a higher level, but negotiations to extend this to other products have stalled. The agreement also mandates the protection of undisclosed test data submitted for pharmaceutical marketing approval, a provision that has been interpreted to create exclusive rights in some jurisdictions. TRIPS does not require the protection of moral rights, which are excluded from its scope. The agreement has been criticized for its impact on traditional knowledge and genetic resources, leading to ongoing debates about a disclosure requirement for patent applications. Additionally, TRIPS has been invoked in disputes over plain packaging of tobacco products, with Australia's measures upheld in a 2018 WTO ruling.³

Compulsory licensing

A government-authorized license allowing a third party to use a patented invention without the patent holder's consent, subject to conditions.

Geographical indication

A sign used on products that have a specific geographical origin and possess qualities or a reputation due to that origin.

Uruguay Round

The eighth round of multilateral trade negotiations under GATT, which led to the creation of the WTO and TRIPS.