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.
Journal of World Trade