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University of Miami International and Comparative Law Review

Abstract

The Trade Related Intellectual Property Rights (TRIPs) Agreement arrived in the 1990s amidst great fanfare for a suite of comprehensive reforms to a trading system that had failed the world time and again. It bore a title that sounded less like a pact on outsourcing or multinational corporatism and more like a fair trade pledge for products of the mind and the personality. TRIPs was introduced as a pillar of the New World Order, a post-Cold War vision in which the fall of the Soviet Union and the opening of the Chinese economy would augur an era of harmonious commerce. The World Trade Organization stood ready to welcome China, Russia, and much of the Global South into an elite club run by the NATO/Japan trading network. For a moment, the optimism was contagious. Free trade would glide smoothly. Inventors’ and authors’ protections would click neatly into place. Tariffs and import restrictions would fade into memory. Nations would link arms in prosperous unity.

Three decades later, however, the sense of unity and shared purpose has dulled. China’s entry into the WTO did revolutionize the global economy, although perhaps it simply relocated major centers of collective activity. Now the world finds itself pausing to consider a troubling question: were the 1990s’ prophets of lopsided trade, lost jobs, and unfairness onto something?

The official story celebrates TRIPs for reducing legal uncertainty, harmonizing IP laws, speeding up trade, and fostering mutually beneficial relationships. Yet behind this inspiring tale lies a disclaimer or hidden clause that the brochure forgot to print. Every celebrated benefit comes with a cost disguised as something else. Job displacement spread in slow motion. Employment growth sagged, by the standards of recent history, as if climbing through molasses. Living standards moved backwards in many places. Inflation surged alongside imports tonnage. Access to life-saving medicines and new technologies was narrowed, in ways, for millions of people. Human rights and public health could be compromised in the name of a value, “trade.”

TRIPs may be a success, but only in a somewhat restrictive sense, the kind of fine print that takes a lot of the joy out of a seeming bargain. It formalized a system that served robust economies more faithfully than substantial sectors of the United States (U.S.) public. Its promise of innovation often meant higher barriers and tighter controls, justified as property rights. Its anticipated efficiencies often required telling local industries to fend for themselves, or even dissolve.

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