LLAW6132 Chap.4 National Treatment and Most-Favoured-Nation Treatment
National Treatment and Most-Favoured-Nation Treatment
Two principles, two benchmarks
National treatment promises foreign right holders at least the treatment a protecting country gives its own nationals. Most-favoured-nation treatment requires any advantage given to one country's nationals to be extended immediately and unconditionally to all members' nationals. The first compares a foreigner with a local; the second compares foreigners with each other.
Choosing the right comparator is the first step in any problem.
How the three instruments phrase national treatment
Paris Article 2.1 gives Union nationals the advantages national laws now grant or may grant to nationals, without requiring domicile, and Article 3 extends it to non-Union nationals domiciled or established in the Union.
Berne Article 5.1 protects authors outside the country of origin, and Berne reaches further in who benefits through habitual residence and first publication. TRIPS Article 3.1 requires treatment no less favourable, subject to the exceptions in the older conventions.
Attachment, origin and exceptions
A point of attachment links a work to a treaty country. Domicile requires real activity, not a letter box.
The country of origin of a published work is the country of first publication, with special rules for simultaneous publication. The most important exception is the comparison of terms in Berne Article 7.8, which caps the term abroad at the term in the country of origin unless local law provides otherwise.
Paris reserves national procedural law, and TRIPS narrows the obligation for neighbouring rights and permits procedural differences that are not disguised trade restrictions.
The disputes
A WTO panel found that a provision of China's 2001 Copyright Law, with review procedures that protected domestic works earlier, breached TRIPS Article 3.1. In a dispute brought by Hong Kong, China, a panel found in December 2022 that requiring Hong Kong goods to be marked Made in China breached the GATT most-favoured-nation rule on origin marking, and rejected the security defence.
What this chapter covers
- 01
National treatment as a rule of non-discrimination
- 02
Beneficiaries under Paris, Berne and TRIPS
- 03
Points of attachment, nationals and domicile
- 04
Country of origin and the comparison of terms
- 05
Procedural and neighbouring rights exceptions
- 06
Most-favoured-nation treatment in TRIPS Article 4
- 07
The copyright, GI and origin marking disputes
Worked example · free
Which principle does a faster procedure breach?
- 2Choose the comparator and name the principle.
- 2Explain why national treatment is not the stronger claim here.
- 2Assess the procedural exceptions.
Key terms
- Material Reciprocity
- Granting a foreigner only the protection their own country gives, the approach national treatment was chosen to replace.
- Comparison of Terms
- The Berne Article 7.8 rule capping a work's term abroad at its term in the country of origin unless local law provides otherwise.
- Habitual Residence
- A Berne point of attachment that brings an author living in a Union country within national treatment whatever their nationality.
- Neighbouring Rights
- Rights of performers, phonogram producers and broadcasters, for which TRIPS national treatment covers only the rights TRIPS provides.
National Treatment and Most-Favoured-Nation Treatment FAQ
Does national treatment mean foreigners get exactly what nationals get?
Under TRIPS the standard is treatment no less favourable, so a member may treat foreigners better but not worse. Under Paris and Berne the foreigner enjoys the advantages national law grants its own nationals, subject to the exceptions each convention preserves, of which the comparison of terms is the most important.
What is the country of origin of a book published in two countries at once?
If it is published simultaneously in several member countries, the country of origin is the one with the shortest term; if one is a member and the other is not, it is the member. For an unpublished work, the author's nationality decides.
Why was China's copyright provision found inconsistent with TRIPS?
Because its pre-distribution and pre-authorisation review arrangements resulted in earlier or more favourable protection for Chinese holders than for foreign ones. The panel found Article 4 of the 2001 Copyright Law in breach of TRIPS Article 3.1; the unequal timing, not the review aim, was the problem.
Exam move
Take three facts patterns and for each write the comparator, the principle, the instrument and the exception in four short lines. Doing this repeatedly trains the first move every non-discrimination answer depends on.
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