The alt fails if it doesn’t theorize an alternative legal regime that’s comparatively better than the aff.

Like postcolonial studies, research conducted by TWAIL scholars—known affectionately as “TWAILers”—aim to address problems in developing countries or the proverbial “Third World,” many of which undoubtedly were caused by colonialization.77 Nevertheless, the target of TWAIL is the structural bias of international law—in particular, how the law has harmed, and continues to harm, developing countries. As Antony Anghie and B.S. Chimni explain: “[T]he experience of colonialism and neo-colonialism has made Third World peoples acutely sensitive to power relations among states and to the ways in which any proposed international rule or institution will actually affect the distribution of power between states and peoples.”78 Some TWAILers have gone even further to assert that international law “carries forward the legacy of imperialism and colonial conquest.”79

A TWAIL critique of international intellectual property law exposes how this area of law— or, more precisely, the developed countries’ version—does not embody universal norms.80 The West-centric version became universal merely because it was “backed by great economic and military might, rather than because of its ‘appeal to common sense or . . . innate conceptual force.’”81 As Rosemary Coombe reminds us, “The range of Western beliefs that define intellectual and cultural property laws . . . are not universal values that express the full range of human possibility, but particular, interested fictions emergent from a history of colonialism that has disempowered many of the world’s peoples.”82

Taken together, both postcolonial and TWAIL approaches seek to address problems confronting developing countries, including those in the intellectual property field. It is therefore logical for those engaging with CRIP at the international level to embrace these two lines of inquiry—the complementarity noted by Professors Vats and Keller earlier.83 Nevertheless, if CRIP does embrace these two pro-development approaches, one has to wonder whether it will face similar critiques by scholars using other approaches. For instance, despite its strengths,84 TWAIL has been criticized for its lack of cohesion, central direction, and standard methodology; its failure to advance concrete alternative solutions; and its paradoxical goal of critiquing international law while also using it as a tool of emancipation.85 Will CRIP suffer the same fate? If not, why not?

In addition, to the extent that CRIP offers solutions, should those solutions build on existing intellectual property norms that were largely driven by developed countries, thereby further entrenching the system it criticizes?86 Or should CRIP steer away from existing norms even though those norms could provide helpful solutions? Put differently, should CRIP intentionally avoid the paradox troubling TWAIL?87

A case in point is the upcoming negotiations of the Draft International Legal Instrument Relating to Intellectual Property, Genetic Resources and Traditional Knowledge Associated with Genetic Resources at WIPO.88 Those negotiations emerged after more than two decades of back- and-forth explorations and deliberations at the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which was established in WIPO in October 2000.89 With respect to this draft instrument, should those embracing CRIP support the indigenous communities’ demand for stronger intellectual property rights in traditional knowledge and cultural expressions?90 Or should they instead take their usual critique of strong intellectual property rights and call for weaker protection and more limitations and exceptions in this area?

Moreover, both postcolonial and third world approaches were built around a world where issues could be distinctly divided between developed and developing countries. As I noted in some recent works, the rise of emerging countries such as Brazil, China, and India has challenged our traditional view that the policy positions in the international intellectual property debate fall along the North-South fault lines.91 On many issues, emerging countries have now taken positions that align more closely with those of developed countries than positions taken by their traditional allies from the developing world.92

A good illustration is the negotiation of the COVID-19 TRIPS waiver during the global pandemic.93 Submitted by India and South Africa and cosponsored by over sixty countries,94 this proposal called for the suspension of more than thirty provisions of the TRIPS Agreement to facilitate the “prevention, containment or treatment of COVID-19.”95 China was supportive of the proposed waiver, even though it stopped short of endorsing the instrument. As its delegate stated at a TRIPS Council meeting when the proposal was debated:

China is willing to discuss access to commodities in relation to the prevention and control of COVID-19, including medicines and vaccines under the framework of the TRIPS Agreement, and supports the discussions on possible waiver or other emergency measures to respond to the pandemic, which are “targeted, proportional, transparent and temporary”, and which do not create unnecessary barriers to trade or disruption to global supply chains.96

Meanwhile, Brazil strongly opposed the waiver, joining its rare allies in the developed world. At the same meeting, its delegate declared: “At this point in time, we are not convinced that a waiver to the TRIPS Agreement would guarantee us meaningful improvement of access, while it might give the wrong signs to innovators and potentially hinder efforts to produce the solutions we need.”97

Given the increasingly complex international normsetting environment, and the changing positions taken by emerging countries once aligned more closely with much of the Global South, it will be important for those embracing CRIP to think deeper about how they could, and should, engage with international intellectual property law and policy. To the extent that postcolonial and third world approaches are treated as complementary, it will be useful to determine when all three approaches will converge and diverge. It will also be worthwhile to undertake greater exploration of how these approaches can be utilized to produce more nuanced research that better captures the growing complexities in the international intellectual property regime.

B. Comparative Law

Another interesting question about the future of CRIP concerns the role of comparative law in this new area of inquiry. Within U.S. intellectual property scholarship, comparative approaches are often underexplored. Even when comparative analyses are undertaken, those analyses tend to be acultural and limited in coverage. At times, they have also been superficial, even though there are some outstanding comparative legal analyses.

Nevertheless, comparative approaches can be highly beneficial to analyzing intellectual property law, as well as other areas of law. As Hiram Chodosh declares:

[Comparison of laws in different jurisdictions] serve many overlapping purposes. First, they potentially facilitate a greater appreciation of similarities and differences among competing laws. Second, they are integral to law reform initiatives intended to reduce the differences. Finally, comparisons inform the creation of private and public international law designed to eliminate conflicts of domestic law.98

Similarly, Albert Chen writes:

By studying the history, structure, content and operation of legal systems and legal cultures in different parts of the world, comparative law scholarship illuminates the similarities and differences in the ways in which different peoples, nations and civilisations solve the fundamental “law-related” problems of human society . . . . It generates the data on the basis of which legal philosophers may rest or develop their theories about what a legal system is or ought to be, about the relative merits of different forms of socio-legal arrangements and institutions, and about the relationship and interaction between the legal, political, economic, social and cultural domains of human existence in society.99

More specifically in the intellectual property area, Graeme Dinwoodie observes: “A comparativist perspective will always aid appreciation of laws. But the increasingly multidimensional nature of international intellectual property litigation may mean that only a comparativist can fully appreciate these dimensions and accord them the proper weight.”100 It is therefore no surprise that intellectual property commentators have called for greater engagement with comparative law research.101 Such engagement is important for development of intellectual property law at both the domestic and international levels.