ABSTRACT
One of the most astonishing outcomes of the Uruguay Round was the inclusion of a new multilateral code governing trade-related aspects of intellectual property, the so-called TRIPs agreement. Certainly the US negotiators who spearheaded the drive to include intellectual property within the auspices of the General Agreement on Tariffs and Trade (GATT) had not anticipated the scope and nature of the final TRIPs agreement. Unlike the GATT itself which prescribes a set of rules and norms for trade in goods which each Contracting Party is free to implement in its domestic laws as it sees fit, the new TRIPs agreement actually requires members of the World Trade Organization (WTO) to harmonize their legal and regulatory systems in matters concerning intellectual property rights. This represents a far greater incursion on national sovereignty than has ever been the case in past multilateral trade negotiations. In that sense, it will be a real test of the future capacity of the WTO to maintain the ‘compromise of embedded liberalism’ which has been a strength of the multilateral trade system since 1947.1 Moreover, the theoretical rationale for the new TRIPs regime is very shaky and its inclusion represents the triumph of powerful economic interests rather than the measured consideration of costs and benefits within the global trade system. Indeed, as this chapter will demonstrate, the debate over intellectual property rights is characterized by competing normative positions, few of which are grounded in either economic theory or empirically demonstrable outcomes. As a result, it is possible that the new TRIPs regime will simply enhance the economic benefits accruing to the holders of intellectual property rights while imposing new and greater economic and social costs for many others.
