Possible interpretations. 3.1 Article 63.1
Possible interpretations. 3.1 Definitions of products covered by the IPIC Treaty An integrated circuit is, according to the Washington Treaty, “a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function” (Article 2(i)). This definition includes both products in their final and in intermediate forms. It covers “gate arrays” and other integrated circuits (e.g., programmable logic devices-PLDs), which cannot be considered “finished” products. In order to be protectable, integrated circuits should contain “at least” one active element. This means that “discrete” microelectronics components are not covered. A “layout-design (topography)” is defined by the Treaty as “the three- dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture” (Article 2(ii)).
Possible interpretations. Article 65 contains the transition period available for developed (para. 1), develop- ing (para. 2) and economies in transition countries (para. 3). Article 66.1 contains the transition period for LDCs. These transition periods are effective automatically and do not have to be specifically requested or reserved.
Possible interpretations. 3.1 Article 69 According to this provision (“Members agree to co-operate . . . ”), WTO Members are committed to cooperate. The language suggests a compulsory method of cooperation through the contact points in the Members’ national administrations. The existence of these contact points must be notified to the other Members.
Possible interpretations. The lack of a general interpretation of the meaning and scope of the provision of Article XXI of the GATT gains relevance when it comes to the analysis of the 209 Ibid. 210 GATT Doc. L/5426 (1982), GATT B.I.S.D. (29th Supp.), at 23 (1983). The text of the decision reads as follow: “Considering that the exceptions envisaged in Article XXI of the General Agreement constitute an important element for safeguarding the rights of contracting parties when they consider that reasons of security are involved; Noting that recourse to Article XXI could constitute in certain circumstances, an element of dis- ruption and uncertainty for international trade and affect benefits accruing to contracting parties under the General Agreement; Recognising that in taking action in terms of the exceptions provided in Article XXI of the General Agreement, contracting parties should take into consideration the interests of third parties which may be affected; That until such time as the Contracting Parties may decide to make a formal interpretation of Article XXI it is appropriate to set procedural guidelines for its application; The Contracting Parties decide that:
Possible interpretations. 3.1 Literary and artistic works Article 2 of the Berne Convention-explicitly assimilated to TRIPS through Article 9– provides that:
Possible interpretations. The public policy interest in encouraging the creation of computer programs does not necessarily require protection solely in the form of copyright. Article 10 re- quires that copyright protection be extended to computer programs. However, TRIPS does not preclude additional forms of protection for computer programs. Thus, under TRIPS, a Member could offer patent, copyright and trade secret pro- tection for computer programs.72 In such a case, the author can choose which form of protection is most desirable assuming of course that, in the case of soft- ware patents, the higher standards of creativity required by patent law are also satisfied. It should be noted that the possibility of alternative forms of protection for computer programs were contemplated prior to TRIPS, and such alternatives do exist in some national laws.73 What TRIPS does require, though, is that one of the options for legal protection is in the form of copyright law. 71 For more details on Article 62 of the TRIPS Agreement, see Chapter 30.
Possible interpretations. 3.1 Article 1.1, First sentence Members shall give effect to the provisions of this Agreement. The interpretation of the first sentence of Article 1.1 that Members shall “give effect” to its provisions, is not a likely subject of dispute, in light of the third 44 For example, the delegate from New Zealand said that the New Zealand proposal was pre- sented as a basis for adequate minimum standards; it did not seek to constrain countries from going further than the minimum standards. Given the limited amount of time left for negotia- tion, his delegation felt that the Group should not attempt to be over-ambitious, either in the level of detail of commitments or through attempting to invent a whole new system. Note by the Secretariat, Meeting of Negotiating Group of 30 October-2 November 1989, Negotiating Group on Trade-Related Aspects of Intellectual Property Rights, including Trade in Counterfeit Goods, MTN.GNG/NG11/16, 4 December 1989, at para. 3. 45 See generally, National Constitutions and International Economic Law, Studies in Transnational Economic Law (X. Xxxx, X.-X. Xxxxxxxxxx, xx.), Deventer, 1993. 24 Nature and scope of obligations sentence that elaborates on the “method” for giving effect. In the absence of the third sentence, argument might well be had over how the giving of effect is to be accomplished. Since the question is more specifically addressed by the third sentence, the first should be understood as serving to state the general treaty obligation to perform in good faith. As stated above (Section 1), the obligation to “give effect” may be discharged not only through the adoption of specific statutes or administrative rules to implement TRIPS, but also where a Member elects to rely directly on the text of the Agreement as part of national law. In this case, however, it should be noted that some of the TRIPS provisions, in order to be applied to a particular case, require further concretisation through domestic legislation or case law.46
Possible interpretations. 3.1 The functions of the Council The Council for TRIPS shall monitor the operation of this Agreement and, in particular, Members’ compliance with their obligations hereunder, [...] The monitoring of Members’ compliance with their obligations is the predomi- nant task of the Council. In order to facilitate such action, Article 63.2 lays down Members’ obligation to notify to the Council their TRIPS-related laws and regu- lations.100 This is a way of reducing the necessity for Members to have recourse to the dispute settlement procedures for breaches of the Agreement.101 The ref- erence in the first sentence of Article 68 to the term “in particular” indicates that this monitoring does not exclusively consist of the review of Members’ compliance with their TRIPS obligations. In more general terms, the Council is supposed to monitor the “operation” of the Agreement, a term that refers to the overall objec- tive of ensuring a smooth functioning of the Agreement, including its objectives and principles. Besides the compliance monitoring, the Council also fulfils other functions, as indicated below. [...] and shall afford Members the opportunity of consulting on matters relating to the trade-related aspects of intellectual property rights. [...] The Council equally provides a forum for consultations on IPR-related matters. This is an important contribution to the building of mutual trust and coopera- tion, which ideally prevents Members from having recourse to dispute settlement proceedings. [...] It shall carry out such other responsibilities as assigned to it by the Members, and it shall, in particular, provide any assistance requested by them in the context of dispute settlement procedures. [...] 99 This implies the possibility of cross-retaliation (for a definition of that notion, see Chapter 30). 100 For more details, see Chapter 31. 101 Note, however, that the obligation to notify TRIPS-related domestic rules applies only after their entry into force (see Chapter 31).
Possible interpretations. 747 follow the same pattern in the various bodies. When a delegation raises an issue it considers important, it usually convenes an informal meeting (which could be outside the ambit of the TRIPS Council) among what it believes are like-minded delegations who are likely to support the issue. Once a certain xxxxxxxx xxxx is reached, the delegation could approach the Chairperson and request the matter be included on the agenda of the next formal TRIPS Council meeting. If the issue is straightforward, the Chairperson might do so without further consultations. On the other hand, if the issue is likely to be a contentious one, then the Chairperson is likely to call what are known as small group informal meetings to seek an agreed compromise.
