Balancing IP & Competition in TRIPS: International Diversity in IP-Competition Dynamics under the Unity of TRIPS

Although intellectual property (IP) and competition policy share goals in promoting innovation and enhancing consumer welfare, diversified practices at both national and international levels indicate that managing IP-competition dynamics is challenging. By comparative examination of the diverse practices between the market-oriented approaches as seen in the US and the EU and the public-oriented approach in China, the paper offers a critical analysis of the IP-competition dynamics in TRIPS and its implications for the triangular tension between state, private rights, and public interests in international law. On the one hand, TRIPS as a governmental treaty regime under public international law, to incorporate IP rights—which are recognized as both private rights and negative rights—into the WTO framework reveals a first legitimacy hurdle due to its insufficient attention to development needs and public interests at TRIPS’ founding moment. On the other hand, dropping the competition issue from the Doha agenda negotiation further missed the opportunity to correct the founding legitimacy hurdle through competition policy’s checks and balances against potential IPRs abuses, which reveals TRIPS second legitimacy hurdle. The paper concludes with a call for re-engaging the competition policy negotiation in the WTO framework on balancing rights and obligations, private rights and public interests for better management of the IP-competition dynamics in TRIPS.