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The Structure of International Intellectual Property Agreements and their Effects on Developing States

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International intellectual property law has become an important factor in international trade as the world economy has become increasing interconnected. The foundational international intellectual property agreement is the TRIPS (Trade-Related

International intellectual property law has become an important factor in international trade as the world economy has become increasing interconnected. The foundational international intellectual property agreement is the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, negotiated in 1994 and required by the World Trade Organization of all its member states. The TRIPS regime establishes minimum standards of protection, but developed states, especially the United States, continually push other countries to enact more stringent laws. This paper explains the power dynamic underlying this international legal order, and furthermore answers how developing states respond. By drawing on Immanuel Wallerstein’s world systems theory, Alisha Holland’s forbearance – the practice of states with the capacity to enforce laws choosing no to do so – and existing empirical studies of seven East and Southeast Asian states’ actions in the realm of intellectual property law in recent years, I argue that the intellectual property agreements under scrutiny are created and pushed by developed American and Western European states to serve their own economic interests. This is supported by a pattern of hegemonic meddling and threats, often by the United States, seeking to influence the domestic laws of developing states, and as a result prompts those states to pursue policies of deliberately partial enforcement – a prime example of forbearance – in an attempt to retain legal legitimacy under international agreements and drive their own economic development. This stands as a refutation of the naïve understanding that developed states have weak intellectual property protections due to apathy, ignorance, ineptitude, or other such moral failings (as developed states such as the United States have claimed). Instead, developing states are pursuing rational and deliberate legal strategies of partial enforcement.

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  • 2017-05