A Pirate of the Caribbean? The Attractions of Suspending TRIPS Obligations

On 21 December 2007, arbitrators in the US - Gambling dispute awarded the Caribbean Island State Antigua and Barbuda the right to retaliate against the United States of America by suspending obligations under the WTO Agreement on Trade Related Aspects of Intellectual Property Rights with an annual value of US$ 21 million. Given the asymmetries in market size and economic power, this scenario serves as the perfect case study for testing claims that suspending intellectual property protection is a legal and feasible option for developing countries and small economies in disputes with their larger trading partners. I argue that it can do a significantly better job than traditional retaliation in achieving the re-balancing purpose as well as the objective of inducing compliance. The relevant DSU rules further do not raise real hurdles for cross-retaliation. However, its main attraction lies in the potential to generate positive welfare effects: If implemented wisely, suspending TRIPS obligations can create temporary policy space for designing the domestic intellectual property regime in a way which facilitates technological development and domestic innovation through imitation and technological learning. In this case, the publicity 'WTO authorized piracy' is likely to generate might actually put a spotlight on normative flaws within the global intellectual property regime.