Toward a TRIPS Truce

The World Trade Organization’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or Agreement), now over fifteen years old, regulates a marketplace characterized by extraordinary dynamism, influenced by the constant forces of globalization and technological evolution. Attempts to regulate this market raise natural, persistent questions concerning the Agreement’s ability to serve its respective constituencies and adapt to change. The Agreement operates in the midst of an age-old dynamic pitting developing and developed countries against one another, especially when it comes to domestic enforcement against piracy and counterfeiting-a dynamic in which TRIPS has been criticized as a one-sided instrument. Further, the TRIPS Agreement’s territorial focus seems outdated in a trade world in which national borders have diminished significantly in importance, and its analog-era approach to intellectual property rights (IPR) faces difficulties in a world dominated by the internet. All of this seemingly complicates the Agreement’s quest for continued relevance as the marketplace it is regulating enters the second decade of the twenty-first century. Yet finding a way to keep TRIPS useful is in everyone’s interests. While various regional and bilateral agreements have attempted to build on or clarify TRIPS provisions, there is no realistic possibility of replacing or significantly amending the Agreement in the near term. This Article argues that TRIPS is neither as one-sided nor as endangered as many assume it to be. In fact, one can interpret the Agreement in a manner that will help bridge the divide between developed and developing countries, minimizing the intransigence that so often characterizes TRIPS discussions and negotiations. Likewise, TRIPS contains features that give it the pliability necessary to keep up with the times, adapting to an intellectual property environment drivenby the internet and by a decreasing emphasis on territoriality. The TRIPS Agreement is both more equitable and more malleable than its longtime reputation suggests.