Abstract
The paper draws on an argument from Hanns Ullrich that the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) suffers for a legitimacy gap. This gap takes the form of an external conditioning of states’ sovereignty over innovation in markets. The paper argues there is a less-discussed and somewhat darker legitimacy gap of TRIPS. This gap relates to the US national security state (NSS) and its use of intellectual property to regulate globally innovation in weapons systems. The paper traces the links between the NSS, intellectual property and weapons innovation from World War II to the present day. TRIPS has lost legitimacy in the eyes of the NSS because it has failed to hold back China’s innovation in defense-sensitive areas such as 5G technology. Drawing on the work of Carl Schmitt, the paper offers a phenomenological reading of the NSS’ view of legitimacy. The paper finishes with an examination of the implications of Schmitt’s friend-enemy distinction for the future of intellectual property and the US-China relationship.
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