I. Concept and scope of intellectual property rights

Intellectual property refers to the exclusive rights that citizens or legal persons enjoy according to law for their inventions, achievements and works in the fields of science, technology, culture and art. That is, people's rights to the intellectual achievements created by their mental activities according to law.

Generally speaking, there are two types of intellectual property rights, namely, broad intellectual property rights and narrow intellectual property rights. Intellectual property in a broad sense includes all the achievements of human intellectual creation, that is, the scope defined by the Convention on the Establishment of World Intellectual Property. Article 2, paragraph 7, of the Convention stipulates that intellectual property rights shall include the following rights: rights related to literary, artistic and scientific works; Performing artist's right to perform, record and play; Inventions produced by human efforts in various fields; On the right of scientific discovery; Industrial product design right; The rights of commodity trademarks, service trademarks, manufacturers' names and marks; On the right to stop unfair competition: as well as the rights arising from intellectual creation in industry, science, literature, art and other fields, intellectual property rights in a narrow sense, also known as traditional intellectual property rights, including industrial property rights and copyright. Industrial property rights include patent rights, trademark rights and the right to prohibit unfair competition. And copyright includes author's right and communication right.

Different countries in the world have different understandings of industrial property rights, but the consensus is that traditional intellectual property rights mainly include patent rights, trademark rights and copyright.

Second, the characteristics of intellectual property rights

Intellectual property, as a kind of property right, is different from property right in the general sense. Its main features are:

(A) the intangible nature of intellectual property rights

The invisibility of intellectual property rights is relative to tangible property rights, which determines that intellectual property trade only has the transfer of the right to use, but not the transfer of ownership.

(2) Exclusivity of intellectual property rights

The exclusiveness of intellectual property refers to the exclusiveness and exclusiveness of intellectual property. Intellectual property can only be owned by the obligee, and other non-obligees must obtain the consent of the obligee if they want to use it.

(C) the regionality of intellectual property rights

The confirmation and protection of intellectual property rights are carried out in accordance with the laws of a certain country, so protection is only carried out in specific areas.

(d) timeliness of intellectual property rights

Intellectual property rights are only protected within the statutory time limit, and beyond the statutory time limit, anyone can use them in any way without involving infringement.

(5) Reproducibility of intellectual property rights

Intellectual property, as intangible property, must be expressed through a certain tangible carrier, which determines that intellectual property can be copied.

Three. International protection of intellectual property rights

The international protection of intellectual property rights is an objective need for the internationalization of knowledge and technology exchanges. 1883 the Paris convention for the protection of industrial property rights is the beginning of international protection of intellectual property rights. 1967 The Convention on the Establishment of the World Intellectual Property Organization was signed in Stockholm, Sweden. The World Intellectual Property Organization (WIPO) was established in April 1970, and became a specialized agency of the United Nations in April 1974, responsible for international cooperation in industrial property rights, copyright and trademark registration. The existing international conventions on intellectual property mainly include: Paris Convention for the Protection of Industrial Property (Paris Convention), Patent Cooperation Convention, madrid agreement concerning the international registration of marks Convention (Madrid Agreement), Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention) and Rome Convention.

With the continuous development of international trade, products containing intellectual property rights account for an increasing proportion in international trade through the transfer of technology use rights, patents and trademarks and copyright licenses. However, due to the inconsistent level of intellectual property protection in different countries and the uncoordinated laws and regulations, acts of infringing intellectual property rights such as counterfeit goods, pirated books and pirated movies occur from time to time, so it is imperative to strengthen trade-related intellectual property protection.

Four. Background of TRIPS Agreement (TRIPS Agreement for short)

(A) the reasons for the emergence of intellectual property agreements

1. Intellectual property plays an increasingly important role in international trade.

With the development of science and technology and the further globalization of economy, the great differences in intellectual property protection standards among countries have brought serious adverse effects on the development of international trade. There are three main reasons for this problem:

First of all, scientific research and technology are playing an increasingly prominent role in industrial production. The proportion of high-tech and creative input in the export products of developed countries is increasing. Developed countries advocate that intellectual property rights should be included in the negotiations of GATT, so that when exporting products, the patent rights can be protected by the host country to compensate the research and development costs.

Secondly, developed countries have more opportunities to produce patented products in developing countries through licensing or joint ventures, which largely depends on the intellectual property mechanism of the host country.

Finally, the technical progress accompanied by the technical improvement of international trade products makes copying and imitation simple and economical. Therefore, in countries with imperfect intellectual property protection systems, counterfeit and pirated products are rampant, which greatly damages the interests of legitimate rights holders.

Therefore, more and more countries realize the importance of strengthening intellectual property protection to promote economic development, and the Intellectual Property Agreement came into being under this background.

2. Limitations of international intellectual property conventions before the emergence of intellectual property agreements.

Before the Uruguay Round negotiations, there were some international conventions to protect intellectual property rights, such as Paris Convention, Patent Cooperation Convention, Madrid Agreement, Berne Convention and Rome Convention. However, these international conventions have some defects to some extent, which can not effectively achieve the purpose of protecting intellectual property rights. For example, there is no international convention to protect trade secrets; The Paris Convention does not stipulate the minimum protection period of patents; Existing conventions are not enough to deal with counterfeit goods; Lack of international protection for computer software and sound recordings; In addition, there is no effective dispute settlement mechanism to deal with trade-related intellectual property issues.

In view of the shortcomings of previous international conventions, developed countries believe that a new international convention should be negotiated to solve these problems. On the basis of drawing on and absorbing the above conventions, the Agreement on Intellectual Property Rights has been effectively supplemented and revised, and has become an international convention with wide coverage, high level of protection, strong protection and strong binding force in the field of intellectual property protection worldwide.

3. Agreement on Intellectual Property Rights and Article 30 1 of the United States

The appearance of the Agreement on Intellectual Property Rights cannot be separated from the promotion of the United States in the negotiations. In the early 1970s, the United States ran a trade deficit year after year. The US government believes that this is because the intellectual property rights of the United States have not been effectively protected worldwide, and the advantages of high technology have not been brought into play. As a result, the United States has stipulated "30 1 clause" in its trade law, which is called "implementing the rights enjoyed by the United States under trade agreements and responding to certain trade practices of foreign governments". According to Article 30 1, if a foreign government fails to abide by the trade agreement signed with the US government or takes other unfair trade actions, which damages the US trade interests, the US government may take compulsory retaliatory measures. Clause 30 1 in the United States consists of three parts: general clause 30 1, special clause 30 1 and super clause 30 1, among which special clause 30 1 is formulated for intellectual property rights.

The Agreement on Intellectual Property Rights of WTO is basically modeled after the "Special Clause 30 1" of the United States. It can be said that the "Special Clause 30 1" of the United States is international, expanded and systematic.

(2) Negotiation of intellectual property agreements

1947 General Agreement on Tariffs and Trade (GATT) stipulates that national treatment, most-favored-nation treatment and transparency are applicable to intellectual property protection, but the terms and contents directly related to intellectual property are limited. During the "Tokyo Round", the United States put forward a draft guideline on counterfeit goods trade, but no agreement was reached.

At the beginning of the Uruguay Round negotiations from 65438 to 0986, developed countries such as the United States and Switzerland advocated the inclusion of intellectual property rights in multilateral negotiations. The United States even suggested that it would refuse to participate in the eighth round of GATT negotiations if intellectual property rights were not taken as a new topic. Developed countries also advocate that standards for the protection of all intellectual property rights should be formulated and must be included in the dispute settlement mechanism. India, Brazil, Egypt, Argentina, Yugoslavia and other developing countries believe that the protection of intellectual property rights is the task of the World Intellectual Property Organization, and it is necessary to distinguish between stopping the trade in counterfeit goods and extensive intellectual property protection. They are worried that the introduction of cross-disciplinary retaliation mechanism will pose obstacles to legitimate trade; Strengthening the protection of intellectual property rights will promote the monopoly of multinational companies, especially the control of drug and food prices, which will have an adverse impact on public welfare. After the start of this round of negotiations, under the auspices of dunkel, Director-General of GATT, a negotiating team composed of 10 developing countries and 10 developed countries conducted negotiations and consultations on this issue.

199 1 year, dunkel, Director-General of GATT, put forward the framework of the draft final text of Uruguay Round, which basically adopted the Agreement on Trade-Related Aspects of Intellectual Property Rights (including trade in counterfeit goods). Since the agreement undoubtedly includes the issue of counterfeit goods trade, the name "counterfeit goods trade" does not appear in the final title of the agreement.

The Agreement on Trade-related Aspects of Intellectual Property Rights is based on the level of intellectual property protection in developed countries. Compared with the economic development level of developing countries, the standards and requirements for intellectual property protection stipulated in the Agreement are quite harsh. Accepting the Agreement on Trade-related Aspects of Intellectual Property Rights is one of the major concessions made by developing countries in the Uruguay Round. The main reasons why developing countries accept the Agreement on Trade-related Aspects of Intellectual Property Rights are:

First, the Uruguay Round package agreement contains some benefits that developing countries want, such as the dispute settlement mechanism strengthened by the Agreement on Textiles and Clothing, so accepting the Agreement on Trade-related Aspects of Intellectual Property Rights is actually an exchange.

Second, many developing countries began to introduce a large amount of foreign capital in the 1980s, and need to strengthen the protection of intellectual property rights.

Third, developed countries agreed to give developing countries some transitional periods to implement the Agreement on Trade-related Aspects of Intellectual Property Rights.

Fourth, developing countries are also worried that without the Agreement on Trade-Related Aspects of Intellectual Property Rights, the US Congress will not approve the package agreement.