TRIPS Through A Military Looking Glass
29 Pages Posted: 26 Mar 2021
Date Written: 2021
Abstract
The paper draws on an argument from Hanns Ullrich that the Agreement on the Trade-Related
Aspects of Intellectual Property Rights (TRIPS) suffers for a legitimacy gap. This gap takes
the form of an external conditioning of states’ sovereignty over innovation in markets. The
paper argues there is a less-discussed and somewhat darker legitimacy gap of TRIPS. This gap
relates to the US national security state (NSS) and its use of intellectual property to regulate
globally innovation in weapons systems. The paper traces the links between the NSS,
intellectual property and weapons innovation from World War II to the present day. TRIPS has
lost legitimacy in the eyes of the NSS because it has failed to hold back China’s innovation in
defense-sensitive areas such as 5G technology. Drawing on the work of Carl Schmitt, the paper
offers a phenomenological reading of the NSS’ view of legitimacy. The paper finishes with an
examination of the implications of Schmitt’s friend-enemy distinction for the future of
intellectual property and the US-China relationship.
Keywords: Carl Schmitt, China, intellectual property, legitimacy, military innovation, national security state, TRIPS
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