Transnational legal process and the TRIPS Agreement: Intellectual property rights, international law and the compliance conundrum.

摘要

This dissertation critically evaluates the extent to which the TRIPS Agreement has succeeded in improving compliance with international intellectual property law. By drawing upon the work of human rights scholar Harold Koh on "transnational legal process", this dissertation departs from traditional accounts of intellectual property regulation at the multilateral level by explaining how implementation problems under the TRIPS regime can be more fully appreciated from the perspective of "compliance theory". I argue that the TRIPS Agreement has only had limited success in generating lasting and meaningful compliance in the global order because intellectual property norms and TRIPS non-compliance mechanisms continue to operate at a largely exogenous, inter-state level, without reconfiguring the values and identities of consumers and other non-state actors at the grassroots level of domestic society. Taking into account the often private and surreptitious nature of intellectual property infringement, it is suggested that the key challenge facing the TRIPS community lies in promoting voluntary adherence to TRIPS standards by domestic actors through processes of "norm internalization" that seek to persuade, rather than coerce or punish.;I elaborate upon my central claim by offering two explanations for the failure of intellectual property norms to generate "internalized obedience" by domestic actors. Firstly, I argue that the uneven moral weight of intellectual property law's internally constitutive goals of monopoly control and dissemination renders TRIPS norms resistant to the internalization process by diluting their persuasive power. Secondly, I propose that the highly polarized nature of the TRIPS socio-political landscape has alienated key norm proselytes from playing a more active role in carving out transnational channels through which intellectual property norms can be "brought home" to the grassroots level of society. In light of these barriers to internalization, I suggest that efforts at promoting compliance under the TRIPS regime need to address the "democratic deficit" in international intellectual property relations by engaging a wider diversity of actors in a joint effort to reconstruct TRIPS norms, so that they reflect a fairer balance between the competing objectives of monopoly protection and knowledge dissemination.