73 Am. U. L. Rev. F. 167 (2024).

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Abstract

This is a Response to Professor Trimble’s article Unjustly Vilified TRIPS-Plus?: Intellectual Property Law in Free Trade Agreements. It builds upon the analysis of TRIPS-plus developments in Free Trade Agreements (FTAs) that have often been criticized in the existing literature and offers a more nuanced perspective on these advances in international intellectual property (IP) law. We complement Professor Trimble’s arguments with insights gleaned from our own empirical research with the TAPED (Trade Agreements Provisions on Electronic-commerce and Data) dataset, which analyzes digital trade rulemaking in the entire body of FTAs, including in the IP domain. Evident in this respect is the growing disconnect between these two fields of law (digital trade and IP). We argue that this disconnect may have negative implications, as it further fragments the regulatory landscape. An adequate interface of international IP and digital trade rulemaking is critical particularly under the conditions of data-driven economies and artificial intelligence development, and it may call for policymakers and trade negotiators to look across previously discrete topics in order to design forward-looking regulatory frameworks that still maintain the precarious balance between strong IP protection and its social cost.

* Professor of International Economic and Internet Law, University of Lucerne Faculty of Law. Principal Investigator of the research project “Trade Law 4.0: Trade Law for the Data-Driven Economy (European Research Council Consolidator Grant 2021–2026). Contact: mira.burri@unilu.ch.

** Postdoctoral research fellow, University of Lucerne Faculty of Law. Contact: maria.vasquez@unilu.ch.