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10 Intell. Prop. L. Bull. 143 (2005-2006)
Why the Current Global Intellectual Property Framework under TRIPS Is Not Working

handle is hein.journals/iprop10 and id is 149 raw text is: Why the Current Global Intellectual Property Framework Under TRIPS Is Not Working By BRIGITTE BINKERT* I. INTRODUCTION If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breath, move, and have our physical being, incapable of confinement or exclusive appropria- tion. Inventions then cannot, in nature, be a subject of property. - Thomas Jefferson.' Intellectual Property is a concept that has been discussed and de- bated throughout history, and it has also been a topic of fierce conten- tion-some people agree with Thomas Jefferson that ideas cannot be a subject of property, while others do not. In a global world with a global economy, this debate has become even more intense. As goods and ideas cross continents and borders, different perceptions of intel- lectual property clash and merge. This process leads to a necessary discussion regarding the international understanding of intellectual property protection. Recently, global intellectual property rights pri- marily have been pursued through the Trade-Related Aspects of Intel- lectual Property Rights (TRIPS) framework.2 However, the * Ms. Binkert is a 2006 Juris Doctor candidate at the University of San Francisco School of Law. 1. John Perry Barlow, The Economy of Ideas: Everything You Know about Intellectual Property is Wrong, in INTELLECTUAL PROPERTY: MORAL, LEGAL, AND INTERNATIONAL DILEMMAS 349 (Adam D. Moore ed., 1997). 2. The TRIPS framework is an agreement laying down minimum intellectual property standards to be implemented by signatories into their national legislation. TRIPS is an annex to the Agreement establishing the World Trade Organization (WTO). TRIPS is a seven-part document, not including the preamble. The preamble lays out the main goals of TRIPS such as to reduce distortions to interna- tional trade while protecting intellectual property rights as private rights under adequate standards.

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