A Long 'TRIP' Home: Intellectual Property Rights, International Law and the Constructivist Challenge

By Lim, Eugene C. | Journal of International Law & International Relations, Summer 2008 | Go to article overview

A Long 'TRIP' Home: Intellectual Property Rights, International Law and the Constructivist Challenge


Lim, Eugene C., Journal of International Law & International Relations


Introduction

The question of why sovereign states comply with the seemingly powerless rules of international law has engaged scholars for decades. Over the years, international relations scholars have sought to formulate compliance theories in their myriad attempts to unravel the complex factors and processes that animate state behaviour in the international legal order. The debate amongst compliance scholars has centred largely on the issue of whether coercive measures such as military force and sanctions can play a viable role in the design and management of international regimes. (1) These scholars may be broadly divided into two camps: the "enforcement school", which advocates the use of punitive mechanisms to punish errant conduct, and the Chayes' "managerial school", (2) which proposes that compliance is more effectively fostered through dialogic interactions between states that seek to persuade and socialize, rather than coerce, them into voluntary adherence to the principles of international law.

While international lawyers and international relations theorists have traditionally focussed their energies on issues of compliance relating to areas of international law such as the use of force, (3) environmental law, (4) and human rights, (5) relatively few scholars have studied the field of international intellectual property regulation from a "compliance theory" perspective. In this article, I seek to explore some of the major compliance issues arising under the Agreement on Trade-Related Aspects of Intellectual Property Rights (6) (the "TRIPS Agreement"), which entered into force in 1995 under the purview of the World Trade Organization ("WTO"). By engaging in the study of intellectual property regulation at the multilateral level, I seek to draw connections between compliance theory and intellectual property law-disciplines that, until fairly recently, have had few intersections. (7) In my view, the growing interdisciplinary interest in compliance theory has inspired a vast and rich body of scholarship from which intellectual property regulation, as an emerging field of international law, can draw valuable insights.

Intellectual property laws, which govern rights arising in products of creative or innovative endeavour, (8) have traditionally been the subject of sovereign jurisdiction, and implemented along geopolitical lines. (9) However, the advent of global free trade has challenged this state-centric paradigm by raising questions of applicable standards and jurisdiction as intellectual property goods cross national borders. (10) The "internationalization" of intellectual property norms, driven largely by the desire of innovation-rich countries for more rigorous and harmonized standards of protection, (11) has provided international lawyers with the opportunity to revisit their debate on the proper roles of enforcement and persuasion in the design of multilateral regimes. In particular, the TRIPS Agreement's introduction of punitive measures, traditionally used to discipline errant conduct in the realm of international trade, (12) to the sphere of intellectual property regulation has sparked renewed interest in the efficacy of sanctions in generating compliance and normative change in the international legal order. (13)

Since 1995, the "marriage" (14) between international trade regulation and intellectual property law under the institutional framework of the TRIPS Agreement has attracted commentary from many intellectual property lawyers. Interestingly, although the great majority of TRIPS commentators have not explicitly used "compliance theory" as their "optic of analysis", many of them have expressed a preference for gentler, more consultative methods of regime management over formal, coercive and confrontational dispute resolution mechanisms. Their recommendations appear to derive insights from managerial theory, although the link has not been explicitly acknowledged.

In this article, I seek to build upon the existing commentary on the implementation of the TRIPS Agreement by exploring how a more explicit connection between compliance theory and intellectual property regulation offers valuable insights on the challenges of TRIPS regime management.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

A Long 'TRIP' Home: Intellectual Property Rights, International Law and the Constructivist Challenge
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.