Bargaining and Intellectual Property Treaties : The Case for a Pro-Development Interpretation of TRIPS but Not TRIPS Plus

This paper argues that, while a pro-development interpretation is warranted for the multilateral TRIPS agreement, it should not be applied to recent bilateral treaties known as “TRIPS Plus.” This case is made despite the fact that TRIPS Plus treaties appear on their face to be more detrimental to developing countries because they provide for more extensive protection of IP. Indeed, the thesis is in conflict with most of the academic and journalistic criticism of IP treaties, the bulk of which maintains that either: (a) TRIPS was a “fair deal” while TRIPS Plus treaties “go too far”; or (b) TRIPS was bad for developing countries while TRIPS Plus agreements are even worse. The thesis of the paper inverts this conventional wisdom by focusing on the conditions under which the intellectual property agreements are made rather than on a facial reading of their terms. More specifically, it evaluates whether there were information asymmetries or political or economic coercion between the parties during the negotiating process. These findings are then tested against a cost-benefit analysis of IP treaties that seeks to gauge their actual economic effects. In those cases when formation of the agreement is undermined by information asymmetries or economic coercion, the paper challenges, or suggests an exception to, the principle that agreements must always be kept in accordance with a narrow construction of their terms. On a more general level, the paper questions two frameworks through which international economic agreements are commonly understood. What could be termed the “dim view” relies on the structuralist arguments of dependency theory, and holds that the uneven distribution of power in the international economy necessarily means that agreements between poor and rich nations are coercive and exploitative. The “sanguine view,” which usually relies on theories of the rational actor, assumes that international agreements are voluntary transactions between rational parties seeking mutual gain, and concludes that when a weaker nation enters into an agreement with a more powerful nation it receives some benefit. The following analysis seeks to demonstrate, by focusing on the specific conditions of the bargaining process, that in some cases rational states will enter into agreements that are to their disadvantage and in other cases they will not