Unjustly Vilified TRIPS-Plus?: Intellectual Property Law in Free Trade Agreements

Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning the transparency of IP systems, cooperation among national IP offices, and clarifications of multilateral IP treaties. The processes of FTA negotiations, adoption, and implementation may produce positives as well; FTAs provide opportunities for experimentation at the bilateral and regional level, whose results may usefully inform future multilateral negotiations. Cross-border IP issues, which can benefit from international coordination, can also be a focus area in future FTA negotiations