The CP solves and competes---doing the plan under the TRIPS agreement is key to harmonizing global IP laws and international trade which solves the aff

The TRIPS Agreement is an integral part of the law of the World Trade Organization (WTO). It stands alongside GATT and the General Agreement on Trade in Services (GATS)15 in the WTO covered agreements package.16 There is much debate over the role of intellectual property in the world trade arena. On the one hand, the developed countries, particularly the United States and the European Union, pushed hard for such an agreement because as the world leaders in production of intellectual property products they had, and continue to have, a comparative advantage to maintain. On the other hand, some developing countries signed the TRIPS Agreement as a necessary part of the WTO package, which promised better access to markets for goods.17 Some of these benefits have come to fruition, but in some areas most notably access to key markets relating to agriculture and textiles, the benefits are a long time coming. The proposition that protecting intellectual property is important for international trade pre-dates the TRIPS Agreement.18 However, the creation of the TRIPS Agreement. represented a significant leap in international agreements on the relationship between trade and intellectual property.

Despite the growth of intellectual property in international trade it remains a territorial creature, and an owner of an intellectual property right must claim that right on a territory-by- territory basis.19 An owner can extend its rights from its country of origin across international boundaries in several ways. These modes of extending intellectual property rights internationally fall into two broad categories. The first category is through selling or licensing the intellectual property rights in other territories. The second category is where the owner exports products or services embodying its intellectual property rights to a foreign territory. In both of these categories the rights owner must rely on local intellectual property laws. There are of course many variables on these two categories; an owner could adopt the first method in one territory and the second in another, but the two groupings form the possible ways in which intellectual property rights fall into the channels of international trade. Both methods of protecting intellectual property rights have been features of international intellectual property law in one way or another for some time.

The WTO system linked intimately this international intellectual property structure with trade and the policies and ideologies behind free trade. The prevailing understanding of international trade at the time of the formation of the WTO was based around trade in goods. This was because the main multilateral pre-WTO trade agreement was the GATT 1947 agreement, which was about trade in goods. The bringing together of this regime with intellectual property creates a difficult relationship because the justifications behind national intellectual property laws, particularly the encouragement of creative and innovative works, are not the same as those in the trade arena.

Dreyfuss and Lowenfeld highlight the contradictory aims of trade and intellectual property, and summarize the differences in the two disciplines’ approach towards what is ‘protectionist’ and what is ‘pro-competitive’. They state that intellectual property is protectionist but international trade ‘disfavors protections’. In relation to ‘pro-competitive’ the authors state:20

‘For the intellectual property community, pro-competitive measures are those that promote innovation by maximizing the public’s ability to utilize intellectual property products already a part of the storehouse of knowledge. Patents, copyrights, trademarks and trade secrets limit public access. They are, therefore, considered anti- competitive....The TRIPS agreement, intended mainly to promote global competition, treats patents, copyrights, and trade secrets as pro-competitive’.

These fundamentally different starting points to achieving competition can be massaged into reconciliation. Although it can be said that maximizing the public’s ability to utilize intellectual property achieves pro-competitiveness – intellectual property protection can also be regarded as pro-competitive because the protection encourages creativity and innovation. This is the classic argument in favor of copyright and patent protection.21 In the case of trademarks, pro-competitiveness is characterized as the lowering of consumer search costs and fostering quality control.22 The differences between trade in tangibles (goods) and trade in intangibles (intellectual property) underscores these fundamentally different approaches of trade and intellectual property to protection and competition.

The relationship between the intangible and the tangible is nothing new to intellectual property law, but it is an awkward concept in an international trade system that had its origins in trade in tangible goods.23 In order to consider the impact that this union of opposites has on the interpretation of the TRIPS Agreement it is important to understand how intellectual property law navigates the relationship between the intangible and the tangible.

GATT governs international trade in goods and GATS governs trade in services and there is a basic, but an extremely important, practical link between goods and services and intellectual property. Intangible intellectual property manifests itself on a tangible host and - in the context of international trade - that host becomes one means by which intellectual property travels across borders. In the world trade context that host has, to date, primarily been goods but international trade in services is a growing industry. The other legitimate method that intellectual property travels across borders is through international contractual and licensing arrangements.

Two examples illustrate the relationship between goods and intellectual property. First, a particular cheese product may be produced using patented technology to obtain an exceptional creamy effect. The cheese product is the result of a patented process and as such embodies the patented technology. Second, a compact disc is the physical good for sale that embodies a range of copyright works.24 The resulting products, cheeses and CDs, may be traded internationally. In the case of the compact disc the intellectual property right is usually copyright and the cheese product is the end result of a patented process - the patent being the relevant intellectual property right. The alternative for the owner of the copyright in the CD or the patented cheese process is to license someone to manufacture and distribute the product in another territory and by that means the physical product does not need to travel. For many readers these fundamentals are nothing new, however, remembering these basics becomes important when considering, as this article does, how to interpret an international intellectual property agreement in a trade context. The relationship between the tangible and the intangible in the WTO is demonstrated in the relationship between GATT and the TRIPS Agreement that is discussed in Part VI below.

In a general sense, it is hardly a novel statement that many goods embody intellectual property rights. In some instances these intellectual property rights will be easier for a third party to infringe than in others. There is nothing particularly difficult in reproducing a compact disc and some patented processes, or products, can easily be copied from the end product. In addition, a patent is public information. The potential threat of a loss of comparative advantage in the intellectual property field, as a result of increased trade and a correlative increased infringing opportunities, has been, and is, used to support the argument that protecting intellectual property is important for international trade and the ‘prosperity’ that trade brings. The direct link between intellectual property and the increase in international trade and international intellectual property licensing arrangements thus led developed countries to negotiate the TRIPS Agreement.

The same link between the increase in trade and the growth of intellectual property products and licenses can equally be used to question whether intellectual property protection should be included in an organization designed to enhance free trade.25 Intellectual property can always be characterized as a barrier to trade because the very existence of an intellectual property right can be used to prevent the import or export of a product.26 The status of the TRIPS Agreement as a covered agreement in the WTO has the effect of recognizing intellectual property, within certain agreed limits, as an ‘acceptable barrier’.27 The significance of the trade barriers that intellectual property can create is that over-protecting intellectual property can be an inhibitor to the free flow of technology and the progress of science globally.28 If in practice real barriers were created, then neither the objectives of intellectual property law nor international trade would be met. Over-protecting intellectual property does not achieve the barrier-lowering objectives of international trade, but in fact inhibits it.29 The TRIPS Agreement in its preamble makes it clear that it should be read in a way that is consistent with free trade. In fact, any other interpretation would be at odds with the WTO context.30