The Importance and Troubles of the TRIPS Agreement When Applied to Cross National Interactions

Amanda Ibrahim

Vol. 42 Associate Editor

Your new Instagram post, the Hot 100’s playlist you’re streaming on your device right now as you’re reading this, the T.V. show you’ve been following for the greater part of your life hoping it ends so you can move on to something new, none of these would reach you if there was no copyright. This field of law is plagued by much confusion and disagreement among U.S. courts, and it becomes even more complicated as we step into the international field. However, although international copyright law was originally plagued with the similar confusion and disagreement, a lot of the uncertainty has been somewhat clarified by the Trade Related Aspect of Intellectual Property Rights Agreement, or—so you can use the rest of your brain to remember other details like what’s for dinner—the TRIPS Agreement. The TRIPS Agreement essentially provided standards that each country had to meet given some types of expectation and continuity—I stress the word “some” in that sentence. Although, now, every artist can be rest assured there is some protection for their work in any member nation of the TRIPS Agreement, there are still contentious issues to be faced when applying nuances of each nation’s law. This article will outline the history of the TRIPS Agreement, how it affects countries, and the gaps it still does not fill. History of the TRIPS Agreement The TRIPS Agreement was established by the World Trade Organization (WTO) as a way to enforce the goals of the Berne Convention. To understand why the TRIPS Agreement ever came into existence, let’s dive into its parent, the Berne Convention. Since the outset of the printing press, publication of literary and other works increased both in original publishing and pirating.[1] Not only were booksellers able to copy and sell authors’ manuscripts faster, pirate booksellers were able to do so too without worrying about paying the authors any sum of the profit.[2] Booksellers pushed law makers for some relief which brought about the 1709 Statute of Anne in Great Britain that gave statutory copyright protection to the authors.[3] After the Statute of Anne, other countries began to adopt this idea of protecting authors’ rights to their creative works.[4] As countries intermingled with each other, they practiced a mutual recognition of copyrights where two countries would protect copyrighted works of each other’s citizens but using their own protection and law.[5] As the focus shifted from booksellers to authors, the statute’s philosophy shifted to afford authors not just economic rights but natural rights.[6] However, this philosophy clashed with other nations’ philosophy when put on the international scale.[7] This was cumbersome to apply to trade agreements which led to serious confusion about how copyrights were squared with other types of trade.[8] Out from all this uncertainty and confusion came the wondrous Berne Convention in 1886 that created a multilateral agreement for copyright protection among the states that signed on to the Berne Convention.[9] (Since the U.S. is known to be a pioneer, we unpretentiously declined to be a member until 1988 when we realized the rest of the world was doing a lot better when it came to handling the needs of authors and certain works. However, it’s important to note that we adopted a minimalist approach and only applied what was necessary to be a member domestically).[10] The Berne Convention has a total of 178 members to this day.[11] The TRIPS Agreement was formed on the idea that “intellectual property protection is a trade issue.”[12] In other words, when intellectual property rights isn’t protected properly, it distorts the flow of trade and compromises the monetary benefits.[13] Its main goal was to implement the Berne Convention which set out to protect authors’ rights.[14] However, not all countries, like the U.S. (surprise, surprise), were keen on viewing it that way. The Law Is a Tricky Game, Especially When Many People Play Although the TRIPS Agreement offers standards that each country must meet, making it easier to facilitate trade, each country applies it different. For example, Article 10.1 of the TRIPS Agreement requires that each country protect computer programs as literary works.[15] The member states in the European Union (EU) under the Directive on the Legal Protection of Computer Programs protect computer programs when they are original work, which is the basic requirement to be a member of the Berne Convention.[16] However, EU states go above and beyond to offer additional protection. The member states in the EU also detail what a licensor of computer software cannot forbid from others. To list a few: 1) the licensor cannot forbid the licensee to make a back-up copy; 2) the licensor cannot restrict a person to observe, study, and test the program to understand the program’s ideas; 3) sometimes, this Directive allows reverse engineering to ensure no inoperability with another program.[17] The U.S. instead still follows the copyright analysis for computer programs without further specifications on what would be permissible, even though computer programming involves creativity and utility. Because of this, U.S. courts run into issues with applying their copyright analysis to computer programs and agree that copyright in U.S. law is not ideal to deal with the dynamics of computer science.[18] This presents an exceptional problem when a computer program from the U.S. is used in an EU country such as Italy. The rights a program would enjoy in the U.S. such as restricting the making of a backup copy would not apply in other countries like the EU members because some of those member nations allow making a backup copy. For example, if Chrysler, a car manufacturer that does business with Fiat, an Italian company, lends some computer programs to Fiat, Italian law would apply which means Fiat would enjoy certain practices that are not allowed in the U.S. This creates concerns for possible infringement, possible theft, and plain out copying which could possibly mean millions of dollars of stolen car programming. So, although the TRIPS Agreement has set consistent standards for all of its members, the fact that each country applies its own laws still muddies the waters. It’s fair that there is still some murky water when it comes to international copyright. An analysis of just U.S. copyright will turn your head enough to reach for a bottle of Advil. Nevertheless, the TRIPS Agreement and the Berne Convention come as close as we have ever been to offering worldwide and equal protection for works of authorship.

[1] Pete Burger, The Berne Convention: Its History and Its Key Role in the Future, 3 J of L. & Tech. 1, 3 (1988). [2] Id. [3] Id. at 5 [4] Julie E. Cohen et al., Copyright in a Global Information Economy, 35 (Rachel E. Barkow et al. eds., 5th ed. 2020). [5] Id. at 35-36. [6] Burger, supra note 1, at 5-6. [7] Id. at 7. [8] Cohen, supra note 4, at 37. [9] Id. [10] Id. at 38. [11] Amendment of the TRIPS Agreement, WTO (Dec. 6, 2005), https://www.wto.org/english/tratop_e/trips_e/amendment_e.htm. [12] Cohen, supra note 4, at 38. [13] Id. [14] Julie Swanson, Think Global, Act Local, L.A. L., May 2005, at 38. [15] Overview: The TRIPS Agreement, WTO, https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm#copyright/ [16] Council Directive of 14 May 1991 on the Legal Protection of Computer Programs, 1991 O.J. (L 122) 42 (EU Software Directive). [17] Id. [18] Computer Assoc. Int., Inc. v Altai, Inc., 982 F.2d 693, 712 (2d Cir. 1992). The views expressed in this post represent the views of the post’s author only.