Intellectual Property Rights’ Trade Relevance

This article critically examines the intellectual property rights’ (IPRs’) trade relevance philosophy and its policy implications. Riding on the productivity and transportation convenience unleashed by the Industrial Revolution, the century-long evolution of the IPRs regime since the 1880s was both the driving force and result of a trade evolution that eventually grew into the World Trade Organization (WTO). The incorporation of IPRs into the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), however, is an ill-considered one. Private and negative IPRs – as expression of originality in arts and literature, inventions in products, and goodwill in marks evolve in trade for trade yet separate from goods and services in trade – are trade relevant, yet can be destructive without competition control. The structural complexity of TRIPS three-tiered exceptions – as to the rights, the use of rights, and rights’ sovereign implications – suggests that the TRIPS philosophy of the balance of rights and obligations is the essence of IPRs’ trade relevance. TRIPS’ IPRs incorporation, however, was ill-considered and IPRs’ trade relevance philosophy is underdefined. Absent of trade-accommodating competition control, IPRs are not trade-related, neither can rights and obligations be balanced, unless the dropped competition negotiation is duly resumed with a positive outcome.