Intellectual property and its foundations: Using Art. 7 and 8 to address the legitimacy of the TRIPS

Abstract

AbstractThis paper addresses legitimacy issues of the international IP regime by focusing on how normative resources internal to the Trade‐Related Aspects of Intellectual Property Rights (TRIPS) might be drawn upon. It combines legal analysis and political theory to account for the TRIPS’ normative foundations (Art. 7 and 8). The paper's primary contribution is to show that these special legal norms are both a locus of balancing the objectives and principles and a guiding light for the interpretation of subsequent norms contained within the treaty. Their content might best be understood using concepts coined by political theory. This combination of legal and philosophical insights identifies two levels of relevance for these special legal norms: as a specification about the type of competition in global trade foreseen by the TRIPS, and as a justification for intellectual property rights protection. To illustrate the relevance of this approach, the paper briefly considers the panel report in Plain Packaging and its use of Art. 7 and 8. Overall, the paper entails both a methodological contribution on the dialog between political theory and law on international trade, as well as a legal argument on how to unpack normative resources entailed by the TRIPS itself.