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     global law and agencies

This page deals with global intellectual property agreements and agencies such as the World Intellectual Property Organization and World Trade Organisation.

It covers

• the global regime
• the Berne Convention - the centrepiece of global copyright law
• Rome, Paris and other copyright conventions such as the 1996 WIPO Copyright Treaty and WIPO Performances & Phonograms Treaty
• international agreements for harmonisation of Industrial Property law - trademarks, appellations, designs, patents etc
• studies of the global copyright and industrial property regime, including works on specific treaties
• WIPO - the World Intellectual Property Organisation
• WTO - the World Trade Organisation and TRIPS Agrement
• a global map of national IP regimes - particular countries are discussed in more detail in later pages of this guide

     the global regime

Intellectual property protection in Australia, as in all advanced economies, reflects international agreements such as the Berne Convention.

Those agreements establish basic standards for IP protection and seek to harmonise the legal regimes of individual countries. The agreements have resulted from negotiations - often extending over many years - under the auspices of bodies such as the World Intellectual Property Organisation (WIPO). They are administered by bodies such as WIPO and the World Trade Organisation and - in practice - through bilateral negotiation by major players such as the US government.

There are a wide range of agreements, consistent with the dimensions of intellectual property protection (from the bundle of rights in music CDs to patenting microorganisms) and the challenges of achieving broad consistency in diverse national laws that reflect both cultural and economic interests. Not every nation is a party to every agreement.

     Berne Convention

The Berne Convention for the Protection of Literary & Artistic Works (Berne) is the key copyright agreement.

It dates from 1886 - following the 1883 Paris Convention for the Protection of Industrial Property (eg patents) - and has been revised several times. It establishes basic categories for copyright protection, rights and the duration of copyright protection. Berne ensures some consistency in the copyright law of participating nations. It is an indication that 'globalisation' didn't begin in the 1970s.

The initial Berne treaty essentially provided for reciprocal recognition of national copyright regimes, building on bilateral agreements. The UK for example established its first International Copyright Act in 1838, extended to cover music - primarily that from sheet music publishers in France and parts of Germany - in 1842. The treaty had a narrow focus, covering writing (eg novels, financial reports and scientific publications), musical composition and some visual art forms (eg engravings but not photographs).

By 1883 there were around 69 international agreements. Most dealt with trade marks; most were on a bilateral basis only.

Since 1886 the convention has been amended six times to keep pace with the emergence of new technologies. Berlin (1908) for example incorporated photography, film and sound recording. Rome (1928) added broadcasting; Brussels (1948) added television. Particular amendments and additional agreements are discussed below. The global industrial property conventions have also been amended.

Until the 1970s preparations for what were mammoth diplomatic negotiations were handled by the United International Bureaus of the Berne & Paris Unions (BIRPI), a secretariat located in Switzerland. BIRPI subsequently became the World Intellectual Property Organisation, discussed below.

By 1993 there were around 100 signatories to the Berne Convention. Most nations are now members.

The United States did not become a signatory until 1988, ie over 100 years after the initial convention. Its first national copyright law (1790) provided protection only for authors who were US citizens or residents. By 1850, only the US, Russia and Ottoman Empire among major powers refused to recognize international copyright and were subject to the sort of criticism recently directed by the US against China. It was not until the 1891 International Copyright Act (the Chace Act) that the US gave foreign authors equal treatment if the author's nation accorded reciprocal protection to US authors and the works were actually printed in the US.

     Rome, Paris and beyond

Like copyright law in most countries, Berne has changed to reflect new technologies such as broadcasting and sound recordings (phonograms) and emerging perceptions of the rights of creators/investors.

That change has been incremental, rather than revolutionary. Its pace reflected differences among members about specific wording and about whether protection should be provided for particular areas of creator or communication.

Supplementary agreements extending the initial Berne Convention include the

1928 Rome Convention for the Protection of Performers, Producers of Phonograms & Broadcasting Organizations (Rome)

Paris Convention for the Protection of Producers of Phonograms (Paris)

1971 Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva). It obliges each contracting state to protect a producer of phonograms (ie music recordings) who is a national of another contracting state against unauthorised making of duplicates, against importation of such duplicates where the making/importation is for the purposes of distribution to the public, and against distribution of such duplicates to the public.

1974 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (Brussels)

More recently the 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances & Phonograms Treaty (WPPT) have updated Berne and Rome conventions in an attempt to catch up with technologies such as the internet.

The WIPO Copyright Treaty extends traditional copyright protection to computer programs and "compilations of data or other material (databases) in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations".

The Performances & Phonograms Treaty deals with intellectual property rights of performers (eg actors, singers and instrumentalists) and producers of phonograms ("the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds"). The treaty covers both groups - performers and record companies - because most of the rights are "connected with their fixed, purely aural performances (which are the subject matter of phonograms)".

Like most nations, Australia has not yet signed or ratified the WCT or WPPT, although the Digital Agenda legislation - noted on the preceding page - is consistent with those treaties.

The US did not become a signatory to Berne until 1988. The 1952 Universal Copyright Convention (UCC) - now largely a curiosity - was sponsored by UNESCO as an international treaty on copyright for countries that disagreed with Berne's terms. Some developing nations, the USSR, the US and other American states considered that Berne was biased towards the interests of Western Europe and was too extreme in the protection of performers rights.

     Industrial Property Agreements

The Paris Convention for the Protection of Industrial Property, concluded in 1883, is one of the bases of the international intellectual property system.

It applies to industrial property in the broadest sense: inventions, trademarks, industrial designs, utility models (a form of patent under the laws of some countries), trade names and geographical indications (indications of source and appellations of origin). As of December 2002 some 164 states were part of the Convention.

The Patent Cooperation Treaty (PCT), concluded in 1970, makes it possible to simultaneously seek patent protection for an invention in each of a large number of countries by filing an 'international' patent application. Such an application may be filed by anyone who is a citizen or resident of a contracting state. The Treaty regulates formal requirements with which any international application must comply.

The 'Madrid System for the International Registration of Marks' is governed by two treaties: the Madrid Agreement Concerning the International Registration of Marks (Madrid Agreement) - concluded in 1891 - and the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (Madrid Protocol), concluded in 1989.

The Protocol introduced new features into the Madrid system, addressing difficulties that prevented some countries from adhering to the Madrid Agreement by rendering the system more flexible and more compatible with the domestic legislation of those countries. As of 2002 around 56 states formed part of the Protocol

The Trademark Law Treaty, concluded in 1994, aims to make national and regional trademark registration systems more user-friendly through simplification and harmonization of procedures. As of 2002 around 31 states were members of the Treaty.

The 1957 Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks establishes a classification of goods and services for the purposes of registering trademarks and service marks. That Classification comprises a list of classes (based on types of products and services) - of which there are 34 for goods and 11 for services - and an alphabetical list of the goods and services. It involves 70 states.

The 1968 Locarno Agreement Establishing an International Classification for Industrial Designs establishes an international classification for industrial designs, consisting of 32 classes and 223 subclasses based on different types of products. It also comprises an alphabetical list of goods with an indication of the classes and subclasses into which these goods fall. The list contains some 6,600 indications of different kinds of goods.

The Strasbourg Agreement Concerning the International Patent Classification, concluded in 1971, establishes the International Patent Classification (IPC), which divides technology into 8 sections with approximately 69,000 subdivisions. Each subdivision has a symbol which is allotted by the national or regional industrial property office that publishes the patent document. As of 2002 some 53 states had adhered to the Agreement.

The Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure was concluded in 1977 and eliminates the need to deposit microorganisms for the purposes of patent procedure in each country in which protection is sought.

The Nairobi Treaty on the Protection of the Olympic Symbol was concluded in 1981: all contracting states are obliged to protect the Olympic symbol (the five interlaced rings) against use for commercial purposes without the authorization of the International Olympic Committee. Australia is one of 41 contracting states as of 2002.

The 1999 Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs aims to make the regime more responsive to the needs of users and facilitate adherence by countries whose industrial designs systems do not permit them to accede to the 1960 Hague Act. Switzerland and Ukraine were among the most recent adhering states in 2002.

The 2000 Patent Law Treaty seeks to harmonize and streamline formal procedures regarding of national and regional patent applications and patents. With a significant exception for the filing date requirements, the PLT provides maximum sets of requirements which the office of a contracting party may apply: the office may not lay down any other formal requirements in respect of matters dealt with by the Treaty.

The International Convention for the Protection of New Varieties of Plants (UPOV), concluded in 1961, is concerned with the protection of new varieties of plants by an intellectual property right.

     studies

For the development of the Berne Convention we recommend Sam Ricketson's magisterial The Berne Convention for the Protection of Literary & Artistic Works (London: Kluwer 1987).

Earlier bilateral developments are covered in James Barnes' Authors, Publishers & Politicians: The Quest for an Anglo-American Copyright Agreement, 1815-1854 (London: Routledge 1974), Meredith McGill's American Literature and the Culture of Reprinting, 1834-1853 (Philadelphia: Uni of Pennsylvania Press 2002) and Simon Nowell Smith's International Copyright Law and the Publisher in the Reign of Queen Victoria (Oxford: Clarendon Press 1968).

Paul Goldstein's excellent International Copyright: Principles, Law & Practice (New York: Oxford Uni Press 2001) offers a broader account than Ricketson; we've found it more accessible than the two volume International Copyright Law & Practice (New York: Matthew Bender 1999) edited by Paul Geller.

We've pointed to studies of the global IP system/s in the Geopolitics page of this guide. Some highlights are Michael Ryan's Knowledge Diplomacy: Global Competition & the Politics of Intellectual Property (Washington: Brookings 1998), The Paradox of Intellectual Property Lawmaking in the New Millennium: Universal Templates as Terms of Surrender for Non-industrial Nations by Endeshaw Assafa, and The New Economic Diplomacy: Decision Making & Negotiation in International Economic Relations (Aldershot: Ashgate 2003) edited by Nicholas Bayne & Stephen Woolcock and Suzanne Scotchmer's 2002 The Political Economy of Intellectual Property Treaties (PDF). Papers in Global Dimensions Of Intellectual Property Rights In Science And Technology (Washington: National Academy Press 1993) edited by Mitchel Wallerstein are also available online.

     WIPO

The 1967 United Nations Convention Establishing the World Intellectual Property Organization came into effect in 1974.

As the name suggests, that international agreement established the World Intellectual Property Organization (WIPO).

WIPO replaced BIRPI. It covers all aspects of intellectual property: copyright and industrial property.

It is located in Geneva and is an arm of the sprawling United Nations bureaucracy - generally considered to be one of the more comfortable arms, as one might expect of a body that serves as the secretariat for ongoing diplomatic negotiations. It has around 820 staff and continues to expand. Unlike much of the UN it is primarily self-financed, through fees for registration and arbitration services.

WIPOs activities include

• promoting acceptance of existing treaties (eg through training in the Third World and initiatives such as World Intellectual Property Day)
• updating existing treaties and supporting the negotiation of new treaties (a process that may involve many meetings over a period of several years)
• promotion of intergovernmental cooperation through international classification schemes, compilation of statistics and maintenance of international databases
• research, directly and through affiliates such as the Washington-based International Intellectual Property Institute (IIPI), responsible for the 55 page Museums & the Digital Future report (PDF)
• processing of international applications for patent, trade mark and design registrations
• provision of an arbitration service, for example relating to domain name registration disputes (the UDRP discussed here).

Bruce Doern's Global Change & Intellectual Property Agencies: An Institutional Perspective (London: Pinter 1999) offers valuable insights.

     WTO

WIPO operates in tandem - one critic describes the relationship as a horizontal tango - with the more recent and arguably more powerful World Trade Organization (WTO), the multilateral trade body dealing with the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) and other global trade treaties that replaced the General Agreement on Tariffs & Trade (GATT) in 1995.

TRIPS covers copyright and industrial property (eg patents, trademarks, designs); non-compliance by WTO member countries may lead to trade sanctions. Although dismissed by critics as "the wish list of the pharmaceutical industry" it offers a mechanism for the resolution of disputes in a way that emphasises multilateral transparent procedures and encourages a predictable trade/investment environment as a public good.

That is reflected in Article 7 of the Agreement, moving debate about the objectives of international intellectual property law beyond Berne in noting that

The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.

TRIPS reflects rather than supersedes the Berne Convention. It has implicitly forced all developed economies and all but a handful of developing economies to abide by Berne, replacing the weaker Universal Copyright Convention (UCC) that was relied upon by the US in particular until a few decades ago. Consequences are highlighted in the 'Duration' page of this guide.

Cooperation between WIPO and TRIPS is formalised through the 1995 Cooperation Agreement (here), which covers regular contact, information exchange and treatment of members.

Christopher Arup's The New World Trade Organization Agreements: Globalizing Law Through Services & Intellectual Property (Cambridge: Cambridge Uni Press 2000) provides a detailed introduction to the evolving WTO-WIPO relationship. It is not an easy read but is worth the effort and might be complemented by Deborah Cass' The Constitutionalization of the World Trade Organization: Legitimacy, Democracy, and Community in the International Trading System (Oxford: Oxford Uni Press 2005), The WTO, The Internet and Trade in Digital Products: EC-US Perspectives (Oxford: Hart 2006) by Sacha Wunsch-Vincent and The General Agreement on Tariffs and Trade: A Commentary (Oxford: Oxford Uni Press 2005) by Petros Mavroidis. Other aspects are explored in An Anatomy of the World Trade Organization (London: Kluwer 1997) edited by Konstantinos Adamantopoulos.

The TRIPS Agreement: Drafting History & Analysis (London: Sweet & Maxwell 1998) is a lucid analysis by Daniel Gervais, complementing the broader treatment in Michael Blakeney's Trade Related Aspects of Intellectual Property Rights (London: Sweet & Maxwell 1996) and David Vaver's 2001 The Enforcement of Copyright & Related Rights under the TRIPS agreement (PDF) and 1998 paper Internationalizing Copyright Law: Implementing the WIPO Treaties.

Peter Drahos' 2001 Bilateralism in Intellectual Property (txt) is a cogent examination of the use of bilateral investment treaties and intellectual property agreements by the US and others to establish more extensive IP protection than required by TRIPS.

There is a broader perspective in the exemplary Global Business Regulation (Cambridge: Cambridge Uni Press 2000) and feisty Information Feudalism (London: Earthscan 2002) by Drahos and John Braithwaite. The Regulation of International Trade (London: Routledge 1999) by Michael Trebilcock & Robert Howse and The Evolution of the Trade Regime: Politics, Law and Economics of the GATT and the WTO (Princeton: Princeton Uni Press 2006) by John Barton, Judith Goldstein, Timothy Josling & Richard Steinberg are also of value in understanding global regulatory regimes.

Christopher May's A Global Political Economy of Intellectual Property Rights: The New Enclosures? (London: Routledge 2000) considers debates about the nature and regulation of intellectual property in the networked economy. William Alford's 'Making the World Safe for What: Intellectual Property Rights, Human Rights & Foreign Economic Policy in the Post-Cold War World', in the 1997 New York University Journal of International Law & Politics, offers a crisp analysis. We've highlighted other writings in the North-South page of this guide.

Anne Krueger edited The WTO As An International Organization (Chicago: Uni of Chicago Press 1998), an excellent institutional study. John Jackson's The World Trading System: Law & Policy of International Economic Relations (Cambridge: MIT Press 1997) and The Jurisprudence of GATT & the WTO (Cambridge: Cambridge Uni Press 2000) are dry; not recommended unless you are a specialist. The Settlement of Disputes in International Law (Oxford: Oxford Uni Press 2000) by John Collier & Vaughan Lowe, The WTO and Technical Barriers to Trade (Cheltenham: Elgar 2005) edited by Spencer Hudson & John Wilson and The WTO & International Trade Law/ Dispute Settlement (Cheltenham: Elgar 2005) edited by Petros Mavroidis are also of value.

The Political Economy of the World Trading System: From GATT to WTO (Oxford: Oxford Uni Press 1995) by Bernard Hoekman & Michael Kostecki complements Drahos' Global Business Regulation. For a view from the left see Unholy Trinity: The IMF, World Bank and WTO (London: Zed 2003) by Richard Peet, Behind the Scenes at the WTO: The Real World of International Trade Negotiations (London: Zed 2003) by Fatoumata Jawara & Aileen Kwa and Whose Trade Organization?: A Comprehensive Guide to the World Trade Organization (New York: New Press 2004) by Lori Wallach, Patrick Woodall & Ralph Nader.

     a global map

The 2001 WIPO Guide to Intellectual Property Worldwide identifies the intellectual property legislation in all nations, along with their adherence to bilateral and multilateral treaties. It also points to relevant organisations.

The following page looks at the regimes in particular countries.

   next page (other countries)