Global Governance in Intellectual PropertyProtection: Does the Decision-making ForumMatter?
Managing Director, World Trade Institute and Professor of European and International Economic Law, University of Bern
Research Fellow, World Trade Institute, University of Bern
Intellectual property; International law; Norms; TRIPs
ThequestionwhethertheTRIPSwouldbringeconomicbenefitnotonlytothedevelopedbutalsodeveloping countrieshasbeendebatedeversincethenascenceofthislegalinstrument.Thishasbeenwidelyassessed through the so-called balance of rights and obligations established in the TRIPS Agreement. With theadvent of parallel bilateral and plurilateral IP rule-making fora, this question has acquired even morenuances requiring examination of specific legal language at all these different levels. Against thisbackground and by examining the balance language of the relevant treaties, this paper examines how thenegotiation fora producing IP rules impact on the achievement of a balance between the rights and obligations of the stakeholders involved. Global, plurilateral and bilateral IP norm-making avenues areassessed with a view to understanding whether there is any discrepancy in their capacity to reflect abalance of rights and obligations. We are mainly interested in comparing multilateral fora, bilateral and plurilateral fora and how they differ in terms of outcomes. We find that this balance is better secured under the WTO TRIPS Agreement and other multilateralfora in particular WIPO. This is why we propose greaterjudicialopennesstowardsthedevelopmentsinthisorganisationattheWTO—amechanismwhich should partially compensate for the Doha negotiations stalemate.
The adoption of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPSAgreement) and the presumed hard-line enforcement of the minimum intellectual property (IP) standardsenshrined therein have attracted much attention. Ever since the advent of the agreement, it has raisedmultiplequestionswithregardtoitseconomicbenefit,mostlywhetherthebenefitsaccruingtodeveloped,developing and least-developed countries are comparable and sufficiently balanced. In the aftermath of thecompletionof theUruguay Round negotiations,a considerableamountof scholarlywork has emergedon this topic. Interest has been further enhanced by the spread of bilateral free trade agreements and plurilateral agreements which incorporate more expansive and stronger IP obligations than those adheredto under the TRIPS Agreement. While TRIPS has received a significant amount of criticismfor favouring privatizationofknowledge,entrenchingeconomicprivilegescentredinthedevelopedworldandneglectingthe “social function of IP laws”,
the question that arises is how one should characterize the bilateral and
,August17,2000,E/CN.4/Sub.2/RES/2000/7.139(2012) 3 W.I.P.O.J., Issue 2 © 2012 Thomson Reuters (Professional) UK Limited