TRIPS, Strategic Competition and Global Welfare: IP at the Intersection of Law and Power

9 Pages Posted: 13 May 2019

See all articles by Frederick M. Abbott

Frederick M. Abbott

Florida State University - College of Law

Date Written: March 29, 2019

Abstract

The later GATT system and the early WTO system were each grounded in a belief in the “rule of law” as a means to promote economic efficiency and public welfare, and a belief that peaceful multilateral trade relations served the common good. Grounding in the rule of law has broken down.

The technology that today needs protecting mainly is that of a global technological infrastructure that is linked together in ways that allow penetration into the most critical infrastructure of societies. This is part of a larger picture in which “policy planners” have lost control of the global digital environment. By happenstance or design, we are living in surveillance states. The TRIPS Agreement was not designed to deal with the current state of international technology affairs.

The period between 1989 and 2019 has witnessed a dramatic shift in the balance of global economic power. China has rapidly emerged as the second most powerful economic area behind the United States, and with countries like India beginning to assert themselves both economically and militarily. We are well past the day when China was not issuing and/or serious about patents, and patent quality is improving. India is asserting a right to technological independence as evidenced by its preference for locally-manufactured alternative energy products, and the India-Solar case may be just the cutting-edge of demands for national technological autonomy.

President Trump has convinced the Europeans more than ever of their dependence on China and other Asian markets for future economic growth, and he hastened or reinforced a pivot away from North America.

None of this is to suggest that trade and investment negotiating and deal-making is going away, or that new deals will not include rules regarding intellectual property, cyber-intrusion and/or transfer of technology. The deals will be bilateral or among coalitions of the willing.

Private sector companies are always adapting to changing circumstances. They are not relying on bureaucrats in Geneva or in Washington to enable their activities. In terms of technology and IP, solutions will be technical. More will be spent on hardening networks, encrypting product technologies, implementing block chain supply systems, more carefully vetting and controlling employee behavior, and defending corporate interests in our chaotic global environment.

The systemic issues are not going to be resolved in the near to medium term. They will be with us for a while.

Keywords: TRIPS, WTO, intellectual property, cyber, technology transfer, surveillance, infrastructure

JEL Classification: F02, F13, F53, O33. O34

Suggested Citation

Abbott, Frederick M., TRIPS, Strategic Competition and Global Welfare: IP at the Intersection of Law and Power (March 29, 2019). Available at SSRN: https://ssrn.com/abstract=3371017

Frederick M. Abbott (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-644-1572 (Phone)
850-645-4862 or 917-591-3112 (Fax)

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