Unit 11 - Background & Issues

Trade-related intellectual property or “TRIPs” was added to trade law as a novelty by the 1994 WTO Agreement (for which the TRIPs Agreement was a subsidiary agreement).  TRIPs reflected what you might call a grand bargain rooted in the idea that poorer developing countries focused on exporting goods (an economic policy referred to as “export-led development”) and  accordingly were concerned about securing WTO-guaranteed market access in industrialized countries.  Meanwhile, the wealthier industrialized countries with economies increasingly skewed to services and research-heavy activity had an interest in improving protection of their intellectual property (in a practical sense, achieving some kind of international minimum standards for IP protection).  TRIPs was formally mostly understood as minimum international standards for substantive IP law and its enforcement (patents, trademarks, copyright, industrial design, trade secret and ad hoc protections like IC chip design, which is how it would typically be treated in something like a typical IP survey course mostly covering domestic law.)  The economic interests then are not identical to the country groupings at present, since, for example, China, which was not even a WTO member in 1994, now produces a lot of intellectual property (patents, chips and software--  remember the 5G controversy, as technology conflicts seem to harden in the US-China negotiations), as does India (Bollywood and software).

Meanwhile, 1994 now lies almost 30 years in the past, and the apparent trade-offs were clearer then.  By introducing IP international standards we coincidentally introduced also what might be called “technology transfer” concerns, recalling issues about the availability of retrovirals in the midst of Sub-Saharan Africa’s HIV-AIDS epidemic 15-20 years ago, replayed more recently with the availability of covid vaccines on a worldwide basis.  Now the IT or tech focus itself generally in cross-border transactions is equally played up in conjunction with the digital economy kinds of concerns addressed mostly in the FTA context (e.g., the newer digital economy chapters in USMCA or TPP-11 as the most recent FTAs), which we have already touched upon in Unit 7.  The newer concerns are mostly internet related, rather than being focused on substantive IP law.  That is more the wider content focus intended in references to “TRIPs plus” IP law, which itself is not really a technical concept.

Given the idea that TRIPs was considered at the time part of a grand bargain, is or should we understand any connection to current trade disputes as part of discussions about re-shoring or friend-shoring factories?  How should we understand trying to take back market access in terms of the current spate of tariffs?  Is this just politics, or does the idea that “a deal is a deal” just have a limited shelf life in trade law and policy?  Looking at this from the Chamber of Commerce perspective, who really benefited from the TRIPs bargain at the enterprise level?  And if we look to “TRIPs plus” law, is it the same players or different ones this time?