Retrieving the Missing Ladder: Excavating Flexibility of the TRIPs Mechanism

Since the emergence of the TRIPS regime in mid 1990s, the standard for the
enforcement of the TRIPS Agreement has been under constant debate. There has
been extensive theoretical literature examining the shortfalls of the TRIPS
Agreement. However, questions as to why the harmonization of TRIPS is
unsymmetrical and how to maximize flexibilities of the agreement as a pragmatic strategy to rehabilitate the pre-TRIPS balance remain largely unanswered. As a consequence, the critique of the incompatibility of the TRIPS Agreement remains rather asserted and less convincing. This Article attempts to review the TRIPS regime from a prismatic lens to justify the correlation between IPR and economic growth and examine the implications of the existing IPR regime. Apart from focusing on the global intellectual property regime, Part I seeks to demystify the economic facets of pre-industrial economies in the "catch-up" phase, accounting for the "ladder of development" reflected by stage theory as a dominant aspect that underpins domestic adaptation of an improved IPR standard in widely differing socioeconomic circumstances. By tracing development trajectories of diferent economies, Part II presents historical myths of such developed economies as Great Britain, the United States, and Japan, which have produced a similar development strategy for implementing and enforcing IPR. Finally, Part III explores the economic
and social foundation needed to enable development of an effective IPR enforcement mechanism. This Article is thus crucial to understanding some overlooked aspects of intellectual property law per se, particularly in the context of the global trading system.