TRIPS: Fifteen Years Later

Abstract

Fifteen years ago trade negotiators signed off on the most comprehensive multilateral intellectual property agreement in history. It was both sweeping in scope and legally binding. Hailed as a major change to international market regulation at the time, in retrospect it looks like a relatively timid and permissive agreement. In the years since, advocates for ever-higher standards of property protection aggressively pushed their agendas through bilateral (Bilateral Trade Agreements, Bilateral Investment Agreements, and European Partnership Agreements), regional (Free Trade Agreements), and plurilateral negotiations (Anti-Counterfeiting Trade Agreement, and the Trans-Pacific Partnership).

I begin by discussing forum-shifting and regime complexity. I then show how that “5%” that TRIPS advocates did not get in the Uruguay Round routinely has been inserted into regional and bilateral trade and investment agreements. I will discuss top-down vertical forum shifting in greater detail, as this has been intellectual property rationers’ preferred strategy in the face of multilateral stalemate. Instances of extreme vertical forum shifting - what I call “going granular” - will highlight the pervasiveness of this technique. Finally the paper will conclude by discussing some domestic innovations in India and China that have the potential to have a broader impact on the intellectual property policymaking arena.

Keywords: Intellectual Property, International Law, Public Health, Pharmaceutical Industry, International Organizations

JEL Classification: F02, F13, F15, I18, K33, K42