Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 10: National treatment under the TRIPS Agreement
As was described in earlier chapters, most notably those by Heath and Brauneis, national treatment has been the standard in the field of intellectual property since the inception of the Paris and Berne Conventions. The TRIPS Agreement builds on this foundation, and distinguishes itself in that it is at heart a minimum standards agreement for intellectual property protection that is an integral part of the international trading system. The question therefore is to what extent the TRIPS Agreement is and continues to be lex specialis in the wider WTO context when it comes to the pre-existing framework of IP treaties with its older national treatment principle and the exceptions thereto. According to Article 2, TRIPS incorporates by reference specific provisions of the Paris Convention for the Protection of Industrial Property of 1883, as revised in the Stockholm Act of 1967; the Convention for the Protection of Literary and Artistic Works of 1886, as revised in the Paris Act of 1971; the International Convention for the protection of performers, producers of phonograms and broadcasting organisations of 1961 (the Rome Convention), and the Treaty on intellectual property in respect of integrated circuits of 1989 (IPIC Treaty). The principle of national treatment in the TRIPS Agreement has to be read in the light of the non-discrimination obligations under the GATT 1994 and the GATS, but it has to be applied not in the context of like goods, like services or service providers, but in relation to persons who are nationals of other Members.
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