ACTA and the Destabilization of TRIPS
SUSTAINABLE TECHNOLOGY TRANSFER, Hans Henrik Lidgard, Jeffery Atik, and Tu Thahn Nguyen, eds., Kluwer, Forthcoming
33 Pages Posted: 2 Jun 2011
Date Written: May 31, 2011
A significant divide has developed between the large portion of the WTO membership which sees little or no benefit from the TRIPS undertakings and the small number of advanced economy members who seek ever greater IP standards. This chasm – between those who now judge TRIPS to be overreaching and those who find TRIPS to be inadequate – raises doubt as to whether a TRIPS consensus continues to exist. Our story is one of two regrets: that TRIPS did not go far enough, that TRIPS went too far. In particular, the call for more IP protection, known as ‘TRIPS Plus’, has led to even greater fragmentation of the global intellectual property system. To ask for more, when the other side wishes to offer less, is a path to a potential breakdown. By pursuing TRIPS Plus, through new free trade agreements, and in particular through the negotiation and implementation of the 2010 Anti-Counterfeiting Trade Agreement (ACTA) is to risk losing the moral force behind TRIPS. ACTA is a critique of TRIPS - its very core signals a diagnosis that TRIPS inadequately addressed the problem of IP enforcement. After ACTA, one cannot read TRIPS as expressing the common understanding of the world community as to the minimum standard of IP protection. ACTA formalizes a rift between the developed world and many other countries (it is these non-signatory countries where 'counterfeiting' and 'piracy' are perceived to be most prevalent). With ACTA, the developed world (led by the United States) is playing a high-stakes game. It seeks to destabilize TRIPS in order to induce movement. But in so doing, it also necessarily undercuts the prestige, normative pull, and - perhaps - legitimacy of TRIPS. For if one group of WTO members distance themselves from TRIPS (due to its asserted ineffectiveness or obsolescence), so too might another group. Ironically, what all these countries might share is a judgment that TRIPS is failing - though of course their respective prescriptions for reform would differ. ACTA may prove strangely counterproductive. Instead of achieving higher IP standards, it may lead to an increasingly resented, and hence less effective, observation of TRIPS.
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