International Issues
United States intellectual property law is affected by several important international treaties and agreements. The United States, EU and other developed nations have had a strong role in creating these guidelines and pushing international IP policy towards stronger protection and enforcement.
The Agreement on Trade Related Aspects of Intellectual Property Rights
Members shall confine limitations and 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 rights holder.
TRIPS (The Agreement on Trade Related Aspects of Intellectual Property Rights) is a treaty, negotiated in 1994, which serves as part of the groundwork for the World Trade Organization. As agreement to TRIPS is a requirement for any nation desiring to participate in the WTO, the treaty has been a powerful force in increasing the strictness of intellectual property laws around the world. Provisions and requirements of the TRIPS treaty include:
- A minimum copyright protection period of the author’s life plus 50 years for most types of works.
- Automatic grant of copyright, with no registration requirement.
- Recognition of computer programs as literary works protected by copyright.
- Copyright exceptions (like “fair use”) restricted tightly by the Berne Three-Step Test. Specifically, "Members shall confine limitations and 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 rights holder."
- Patentability of all forms of technology regardless of industry, specifically including protection for circuit design.
- A patent protection period of at least 20 years.
- Compulsory licensing for patents if patent rights are being abused.
- Various other protections for trademark, trade secrets and other forms of IP.
The TRIPS agreement relied extensively on the Berne Convention (originally agreed to in 1886) for its copyright protection provisions, but it brought much more enforcement to these provisions through the WTO dispute settlement body. The WTO DSB can direct WTO member nations to adapt their laws to conform to the TRIPS treaty, with non-compliance possibly resulting in loss of trade relations around the world.
World Intellectual Property Organization Treaty
The World Intellectual Property Organization Treaty (WIPO Copyright Treaty) is a treaty negotiated and adopted by members of the WIPO in 1996. It is concerned with codifying some of the provisions of TRIPS. Primarily, the WIPO Copyright Treaty lays out requirements for the enforcement of software copyright, the protection of database information, and the prohibition of circumventing encryption schemes and rights-protection methods.
The WIPO Copyright Treaty was the international impetus for the United States’ Digital Millennium Copyright Act (DMCA) of 1998, and implementation of the DMCA brought the US into compliance with the Treaty. The European Union issued a directive to its member states in 2001 with similar requirements to the DMCA, but many EU nations are still in the process of drafting and passing laws to comply with the Treaty and the EU Directive.
Chinese Intellectual Property Rights
The rapidly developing economy of China serves well as an example of copyright and patents as policy and not necessarily property. Intellectual property rights were not recognized at all in the People’s Republic of China prior to 1979. China has implemented many international IPR agreements since that time, becoming a member of the WIPO in 1980 and modeling its laws on the Berne Convention and on TRIPS. China and the US entered into several bilateral agreements to guarantee the protection of American works on Chinese soil in the 1990s.
China's rapid accession to multiple international treaties has created a body of law that is similar in many ways to the United States’ and many other developed countries. However, because IP law is seen by many as a foreign custom, "piracy," illegal copying and other IP transgressions are common. In many cases, local or provincial government is willing to leave IP rights unenforced.
