Edited by Jessica C. Lai and Antoinette Maget Dominicé
Chapter 8: Tangible meets the intangible: international trade in intellectual property
AbstractInternational trade up until the late twentieth century usually was primarily about trade in tangible goods and not the cross-border flow of intangible intellectual property, or even intangible intellectual property goods (such as digital works). The piracy possibilities that can arise as a result of the increase in the trade of goods incorporating intellectual property became a substantial concern in the nineteenth century and resulted in the 1883 Paris Convention and 1886 Berne Convention. The relationship between intellectual property and international trade was extended when the TRIPS Agreement was adopted as part of the WTO in 1994. This chapter examines that relationship, in particular by addressing the TRIPS Agreement and its aims in comparison to – and as a subset of – the WTO GATT and GATS constellation. The chapter discusses the exhaustion of intellectual property (and accordingly parallel importing) within the international trade law context and why there is confusion or conflation of intellectual property with its physical embodiments in the international trade context. The final part of the chapter addresses how understanding the intangible nature of intellectual property might assist in untangling the uses of intellectual property law in trade to control tangibles that arguably have negligible trade benefits and may in fact be more trade distorting than trade enhancing.
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