A Handbook of Contemporary Research
Edited by Daniel J. Gervais
Chapter 4: An international acquis: Integrating regimes and restoring balance
The TRIPS Agreement is hardly the last word in international intellectual property lawmaking. Bilateral, plurilateral, and regional agreements, along with a multiplicity of training tools, guides, and resource books have followed in its wake. Intellectual property is a high-stakes commodity in the Knowledge Economy. Accordingly, this ferment in norm formation is unlikely to abate. Nations in the North with an interest in commodifying their knowledge-based output will continue to shop for (or create new) institutions that will endorse or develop higher standards of intellectual property protection, while those countries at the opposite end of the development spectrum will not abandon the search for fora more solicitous to user interests, distributive justice, health, and development. We have elsewhere proposed procedural and institutional mechanisms for integrating all of these activities into the TRIPS Agreement, including new approaches to interpretation of the Agreement. However, interpretive approaches can go only so far. They are essentially backward-looking solutions; they do not preclude legal fragmentation and thus can only resolve the problems fragmentation produces. Yet coherence is essential to robust innovation: creativity cannot flourish without a greater degree of certainty than the current regime permits. Of course, absolute certainty is not realistic and, moreover, is less than ideal if national experimentation and cross-border trade are both valued. We believe, however, that it is possible to do better.
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