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12 Chi. J. Int'l L. 1 (2011-2012)
The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property

handle is hein.journals/cjil12 and id is 3 raw text is: The Surprising Benefits to Developing Countries of Linking International Trade and Intellectual Property Rachel Brewster* Abstract The World Trade OrganiZation's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rghts, including substantive laws creating rghts and a host of enforcement procedures. Trade scholars and development advocates frequenty criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half First, the TRIPS Agreements requirement that developing states make the domestic enforcement of intellectual property rules available is weak. The TRIPS Agreement relies on the existence of domestic remedies to enforce intellectualproperty rules. This reliance is unwarranted, however, because states are explicitly exempted from any obligation to allocate significant resources (i.e. police or prosecutors) to enforce these laws. Nor are courts or judicial authorities required to order the remedies that the TRIPS Agreement gives them the authority to provide. The result is that states can set their effective level of intellectualproperty enforcement at a level well below that of developed states with similar laws and enforcement institutions. Second, this article highlights the beneficial effects that trade retaliation in intellectual property can have for developing countries. The possibility of retaliating by suspending the TRIPS Agreement's obligations gives developing states much greater leverage to enforce other trade obligations against developed states. * Assistant Professor, Harvard Law School. Thanks are due to Daniel Abebe, Bill Alford, Gabby Blum, Anu Bradford, Glenn Cohen, Ros Dixon, Tom Ginsburg, Jack Goldsmith, Daryl Levinson, Gerry Neuman, Ben Roin, Paul Stephan, Matthew Stephenson, Jed Shugerman, Jeannie Suk, Joel Trachtman, Mark Wu and all the participants of the University of Chicago Law School's International and Comparative Law Workshop for conversations about this topic and comments on the paper. In the interest of full disclosure, it should be noted that I worked for the United States Trade Representative's Office (USTR) during the time the United States-Subsides on Upland Cotton case was proceeding through WTO dispute settlement. The views in this paper are my own and do not represent the views of the USTR or its staff. 1

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