Toward a TRIPS Truce

Abstract

This article suggests that the conventional wisdom pitting developed countries against developing countries in arguments over intellectual property rights (IPR) protection is beginning to break down. It challenges longstanding assumptions that developed countries want IPR harmonization and developing countries want maximized flexibilities governing judgments of domestic enforcement of international intellectual property norms. The article illustrates how “pro-IPR” no longer necessarily means “anti-flexibilities” in the enforcement realm. In fact, those espousing strong IPR protection can employ enforcement flexibilities to their own ends, as they adapt both their enforcement mechanisms and their international policy positions to a digital age. The article uses language from a recent dispute between the United States and China involving the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to add contour to the TRIPS enforcement obligations, thus breathing new life into TRIPS flexibilities and illustrating how those flexibilities can benefit developed and developing countries alike. The resulting mutual benefit starts the process of bridging the divide between groups whose opposing positions on IPR have brought TRIPS negotiations to a standstill. The article also illustrates how the dispute has strengthened TRIPS as an intellectual property enforcement instrument – an ironic outcome given that the United States lost on its principal claim. Finally, the article argues that giving dispute settlement panels a mandate, and the power, to take a flexible approach to judging compliance with the Agreement can help TRIPS remain useful and relevant in an age in which the internet is driving rapid technological advances and changing global business.