Intellectual Property Arbitrage: How Foreign Rules Can Affect Domestic Protections

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), concluded in 1994, has narrowed the range of issues on which nations can adopt differing IP rules. All World Trade Organization (WTO) member nations, for example, must now protect computer programs by copyright law.' Yet TRIPS plainly contemplates continued differences in national laws by signaling that nations are free to adopt higher-protection rules than the required minima' (which presumably means they need not do so). Nations are also "free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice."' TRIPS restricts national autonomy by forbidding nations from treating foreigners less well than their own nationals,4 but this implicitly "accept[s] the proposition that states may differ in their substantive laws."5 Other TRIPS provisions recognize that member states can adopt IP rules "in a manner conducive to social and economic welfare" and "to promote