Understanding the National Treatment Principle under the TRIPS Agreement: Equal Protection and Flexibility for Developing Countries

The national treatment principle of the TRIPS Agreement, which is embodied in Article 3, provides that each WTO member shall grant to the nationals of other members treatment no less favourable than that it accords to its own nationals in relation to protection of intellectual property (IP)[1]. This prohibits discrimination and the principle of a level playing field for foreign right holders in the access to and enforcement of IP rights.

National Treatment is a well-established treaty norm that was taken from prior IP treaties, including the Paris Convention (Article 2) and the Berne Convention (Article 5(1)), when writing TRIPS (which incorporates the same under Article 2.1)[2]. TRIPS thereby creates the multilateral structure that prevents foreign nationals being discriminated against in the realm of IP enforcement and protection.

Key Elements:

• Scope: Applies to any IP category included in TRIPS (copyrights, patents, trademarks, etc.).[3]
• Equal protection and remedies: Foreign nationals must have equal access to legal process and protection with respect to the same fundamental rights.[4]
• No formal reciprocity requirement: Protection is not predicated on reciprocity by the foreign national’s country.[5]

Relevant Case Law:

1. DS160 – United States — Section 110(5) of the US Copyright Act (2000)
   The European Communities objected that the provision of the US law allowing certain facilities (i.e.bars/restaurants) to escape royalties for music broadcast was inconsistent with GATS art. The Dispute Settlement Body of the WTO decided that this was not in conformity with the TRIPS agreement and the Berne Convention (as enacted in TRIPS) because it didn’t afford foreign right holders the same protection accorded to US nationals.[6]
   This case established that TRIPS National Treatment must be consistent with Berne.[7]
2. DS362 – China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights (2009)
   The U.S. counter-argued that the People’s Republic China’s copyright system inadequately protected works without Chinese agency approval, a requirement that it charged was inconsistent with TRIPS. The WTO Panel determined that China’s measure resulted in disparate treatment, subjecting some foreign works to no protection, in violation of its national treatment obligation.[8]

This underscored that even de facto discrimination of foreign works is not allowed under TRIPS.[9]

These decisions also reaffirm National Treatment as the foundation of international IP governance, helping to bring about naturalness and consistency among jurisdictions.[10]

The Uruguay Round (1986– 1994) multilateral trade negotiations witnessed resistance from developing countries to include intellectual property (IP) arguing that it is a policy instrument of the industrialised countries and their transnationals.[11] Still, a variety of strategic, economic, and political conditions ultimately drove the U.S. to agree to negotiate provisions on standards and principles of IP under the TRIPS Agreement.[12]

Key Circumstances:

1. Mounting Bilateral Pressure: The United States and other developed countries utilized Section 301 of the U.S. Trade Act to warn against independent trade sanctions against countries that the United States considered to have weak IP laws, and specifically mentioned India, Brazil, and Thailand. This coercive diplomacy forced developing countries to pursue multilateral rather than fragmented bilateral deals.[13]
2. Linkage with Trade Benefits: IP was linked to wider trade-offs particularly in agriculture and textiles where developing countries had significant export interests. Agreeing to negotiations over IP had been a concession offered to secure entry in advanced economies.[14]
3. Fear of Technological Isolation: Developing countries worried about being denied access to advanced technologies, pharmaceuticals and investment. Agreeing to the TRIPS was deemed necessary to ensure involvement in the flow of global innovation, albeit on negotiated terms.[15]
4. WTO Institutional Leverage: In accepting the inclusion of IP negotiations in the WTO, developing countries gained effective binding dispute settlement to bring cases against the non-compliance of developed countries.[16]

In the end, a combination of strategic pressure, economic inducements, and institutional interests induced developing countries to agree to a negotiating process that resulted in TRIPS, notwithstanding very significant worries about the long-term developmental implications of the WTO’s intellectual property regime.[17]

Special and Differential Treatment (S&DT) in the TRIPS Agreement — the provisions which allow for certain flexibility for developing countries and least developed countries (LDCs) to comply with the international standards for intellectual property[18]. TRIPS, unlike the other WTO agreements, includes S&DT provisions which are limited but strategically important, acknowledging the varying levels of ability of countries to enforce complex IP systems.[19]

Key Provisions:

1. Extended Transition Periods:
   • According to Article 65, the least developed countries received an extended 5-year period (until 2000) to make TRIPS effective.[20]
   • Originally LDCs were allowed 11 years (up to 2006) under Article 66.1, with regular subsequent extensions. The current extension for LDCs for pharmaceutical patents applies until 01 January 2034.[21]
2. Technology Transfer (Article 66.2):
   The industrial countries must have to motivate industries and institutions for technology transfer in LDCs encouraging their solid as strategical technical foundation. But the enforcement of the latter has remained lax and only cosmetic.[22]
3. Tailored Implementation (Article 67):
   Technical and financial support to developing and least developed countries to assist them to enforce TRIPS requirements are recommended.[23]

Criticism:

Notwithstanding these safeguards, it is argued by the critics that the S&DT provisions in TRIPS are not sufficient and not sufficiently enforced to provide protection against the exorbitant cost of IPR enforcement[24]. Furthermore, the envisaged technology transfer has hardly materialised, thus maintaining structural disparities.[25]

Finally, as an expression of recognition of developmental differences, the impact of S&DT has been limited and requires more effective observance.[26]

• [1] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994, art 3.
• [2] TRIPS Agreement 1994, art 2.1; Berne Convention for the Protection of Literary and Artistic Works (1886), art 5(1); Paris Convention for the Protection of Industrial Property (1883), art 2.
• [3] TRIPS Agreement 1994, art 1 and art 3, covering all IP subject matter including Part II.
• [4] ibid art 3.1; see also WTO, ‘Overview: the TRIPS Agreement’ https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm accessed 30 July 2025.
• [5] ibid; see also Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis (Sweet & Maxwell 2020) 178.
• [6] WTO, ‘United States – Section 110(5) of US Copyright Act’ (2000) WT/DS160/R, Panel Report, paras 6.198–6.220.
• [7] ibid paras 6.221–6.240; see also Graeme B Dinwoodie and Rochelle Dreyfuss, A Neofederalist Vision of TRIPS (OUP 2012) 96.
• [8] WTO, ‘China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights’ (2009) WT/DS362/R, Panel Report, paras 7.570–7.580.
• [9] ibid para 7.605; see also Peter K Yu, ‘The Global IP Order and Its Undemocratic Roots’ (2020) 20 Chi J Int’l L 465.
• [10] JH Reichman, ‘The TRIPS Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?’ (2000) 32 Case W Res J Int’l L 441, 460.
• [11] Carlos Correa, Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options (Zed Books 2000) 9.
• [12] Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (Earthscan 2002) 67.
• [13] United States Trade Representative, Section 301 Report on Intellectual Property Practices (1989), cited in Susan Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge University Press 2003) 106.
• [14] Duncan Matthews, Globalising Intellectual Property Rights: The TRIPS Agreement (Routledge 2002) 45–47.
• [15] UNCTAD, The TRIPS Agreement and Developing Countries (UNCTAD/ITE/1, 1996) 12–13.
• [16] WTO, Understanding the WTO: Settling Disputes https://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm accessed 30 July 2025.
• [17] Laurence R Helfer, ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2004) 29 Yale J Int’l L 1, 27.
• [18] TRIPS Agreement 1994, arts 65–67.
• [19] Bryan Mercurio and Daria Kim, ‘TRIPS Flexibilities and Implementation in Developing Countries’ in Carlos Correa (ed), Research Handbook on Intellectual Property and the Life Sciences (Edward Elgar 2018) 21–25.
• [20] TRIPS Agreement 1994, art 65.1–65.5.
• [21] WTO Council for TRIPS, Extension of the Transition Period under Article 66.1 for Least Developed Country Members for Certain Obligations with Respect to Pharmaceutical Products (Decision of 6 November 2015) IP/C/73.
• [22] TRIPS Agreement 1994, art 66.2; see also UNCTAD–ICTSD, Resource Book on TRIPS and Development (Cambridge University Press 2005) 676–679.
• [23] TRIPS Agreement 1994, art 67.
• [24] Mohammed El Said, Public Health Related TRIPS-plus Provisions in Bilateral Trade Agreements (UNDP 2010) 42.
• [25] Suerie Moon, ‘Does TRIPS Art. 66.2 Encourage Technology Transfer to LDCs? An Analysis of Country Submissions to the TRIPS Council (1999–2007)’ (2008) 11(2) J World Intellect Prop 103.
• [26] Carlos Correa, Guidelines for the Examination of Pharmaceutical Patents: Developing a Public Health Perspective (WHO/UNCTAD/ICTSD 2007) 32.