Legal Innovation in International Intellectual Property Relations: Revisiting Twenty-One Years of the TRIPS Agreement
77 Pages Posted: 10 Apr 2015
Date Written: 2014
An explicit goal of the 1994 TRIPS Agreement was to secure export markets for a wide variety of knowledge goods in which industrialized countries had long held a competitive advantage. In more fundamental terms, however, the TRIPS Agreement sought to reshape the conditions of future global competition, particularly the extent to which developing countries could use intellectual property (IP) as a form of industrial policy in pursuit of strategic development objectives. Twenty-one years later, the TRIPS Agreement has neither confirmed the worst fears of developing countries nor accomplished the greatest hopes of the developed ones. Instead, both sides have inserted important points of adherence and resistance to the negotiated global IP norms, thus destabilizing many of the Agreement’s implicit political and economic bargains. This Article posits that legal innovation in the developing countries has enabled creative responses to the TRIPS Agreement by facilitating new domestic policy responses to the pressures of intellectual property harmonization. For my purposes, legal innovation is (i) characterized by the potential that the selected tools for innovation are sustainable within the local legal culture; (ii) fueled by a clearly identified national development purpose or strategy; and (iii) effectuated principally by local actors. I suggest that this new “coming of age” of the TRIPS Agreement is also characterized by the institutionalization of international obligations in competing policy spaces such as human rights, the environment and public health. In this regard, international IP norms have become the implicit, and in some cases explicit, subject of legal innovation in a broader scheme of national welfare planning.
Keywords: TRIPS Agreement, legal innovation, developing countries, intellectual property policy, industrial policy, economic development, India, Brazil, South Africa, TRIPS compliance
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