The TRIPS Balloon Effect
Patricia L. Judd
Washburn University School of Law
June 10, 2014
New York University Journal of International Law and Politics (JILP), Vol. 46, No. 2, 2014
This Article argues that much of the discomfort surrounding the current marriage of intellectual property rights (IPR) protection and global trade stems from the impossibility of ascertaining a static definition of either trade or intellectual property. In fact, the evolutionary nature of both fields renders fruitless any attempt at genuine stability where those fields intersect. Yet, the phrase “trade-related aspects of intellectual property rights” delineates the mandate of the World Trade Organization’s IPR agreement, TRIPS. Most critics of the TRIPS mandate’s breadth have focused on the historical meaning of the pertinent phrase at the time of negotiation. However, an historical focus ignores the most important part of the equation. The question is not what “trade-related aspects of IPR” meant then. The question, rather, is what the phrase means now, reflecting the evolution of that meaning through time. This Article posits that the two are not the same. Rather, marketplace externalities affecting both international trade and intellectual property transactions have expanded the original TRIPS mandate, creating a balloon effect. Parties’ lack of identification of the balloon effect has contributed in large measure to perceptions that TRIPS is overreaching and underperforming, and has driven much of the discontent behind recent regime-shifting away from the World Trade Organization (WTO). The Article posits that this forum-shifting is premature because it reflects a lack of critical analysis and understanding of the underlying causes of TRIPS discontent. The Article illustrates that TRIPS actually is better-equipped to deal with the balloon effect than its critics realize, because it contains specific textual mechanisms — currently under-utilized by parties — that can provide balance in a trade-dominant world. The Article calls for a re-examination of the TRIPS mandate in the context of the balloon effect, greater utilization of that Agreement’s assets in combatting the perceptions of overreaching and underperformance, and caution in forum-shifting through negotiation of new agreements likely to prove less effective and less malleable.
Number of Pages in PDF File: 70
Date posted: June 12, 2014
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