23 November 2011


Reading two recent articles on TRIPS ...

'TRIPS and Its Achilles' Heel' by Peter Yu in 18 Journal of Intellectual Property Law (2011) 479-531 -
examines why the TRIPS Agreement fails to provide effective global enforcement of intellectual property rights. It attributes such failure to five sets of challenges: historical, economic, tactical, disciplinary, and technological.

The article then outlines the various actions taken by both developed and less developed countries to steer the TRIPS Agreement and the larger international intellectual property system toward their preferred positions. While developed countries push for the development of stronger enforcement norms, less developed countries resist those demands and complain about the use of bilateral, plurilateral, and regional trade agreements to establish TRIPS-plus standards.

The article concludes with four lessons that can be drawn from the continuous battle between developed and less developed countries over international intellectual property enforcement norms. Given the significance of effective enforcement to both developed and less developed countries, it is the hope of this article that a better understanding of these four lessons will lead to a more balanced, robust, and sustainable global intellectual property enforcement regime.
'TRIPS Enforcement and Developing Countries' by Yu in 26 American University International Law Review (2011) 727-782 notes -
In January 2009, the WTO Dispute Settlement Body released a panel report on China - Measures Affecting the Protection and Enforcement of Intellectual Property Rights. The dispute concerned the inadequacy of protection and enforcement of intellectual property rights in China under the TRIPS Agreement. While both China and the United States were quick to declare victory in this dispute, less developed countries might have become the dispute’s unintended and unannounced winner.

As part of the symposium on the Anti-counterfeiting Trade Agreement (ACTA) and international intellectual property enforcement, this Article focuses on the implications of this panel report for less developed countries. It begins by recapitulating the key arguments made by China and the United States as well as the major findings in the report. The article then evaluates the panel report from the standpoint of less developed countries. It explores both the areas where the report has enabled less developed countries to score some important points in the interpretation of the TRIPS Agreement and where it has provided some disappointments.