Copyright and the Uruguay Round Agreements : A New Era of Protection or an Illusory Promise?

This article explores the negotiation history of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in order to clarify the changes, opportunities and potential road-blocks that this recent multinational instrument poses for copyright protection internationally. The greatest threats to the potential new era of protection promised by TRIPS lies in the compliance waiver (grace period) granted to developing and least developed countries and the concomitant technology transfer requirements imposed on developed countries. At a minimum, these features delay the implementation of promised stronger enforcement under TRIPS. At their worst, they impose an obligation on developed countries to encourage a transfer of technology when the owners of such technology have little assurance that their rights will be protected. Ambiguities contained in the agreement, including the absence of standards for critical issues such as “abuse” of process and “adequate compensation”; the failure to resolve the problems of inconsistent national treatment; and the acceptance of exceptions to TRIPS protection for purposes of promoting “socio-economic and technological development” similarly undermine the promise of greater copyright protection under TRIPS. It is too early to predict the extent to which the compromises and ambiguities in TRIPS have turned its promise of stronger international copyright protection into an illusion. Given the lack of certainty regarding the actual impact TRIPS may have on the immediate problem of international copyright infringement, copyright owners should be prepared for disappointment. TRIPS is not the solution to their problems. ITRIPS has too many flaws and compromises to usher in any anticipated “new era of protection.” But its imperfect promise of such protection is not wholly illusory. Instead it represents a useful first step