A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime

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1 Oxford Scholarship Online You are looking at 1-8 of 8 items for: keywords : Manilius lawiim lawpil A Neofederalist Vision of TRIPS: The Resilience of the International Published in print: Published Online: May Item type: book acprof:oso/ This book examines the TRIPS Agreement: its interpretation, its impact on the creative environment, and its effect on national and international lawmaking. It propounds a vision of TRIPS as creating a neofederalist regime, one that will ensure the resilience of the international intellectual property system in time of rapid change. In this vision, WTO members retain considerable flexibility to tailor intellectual property law to their national priorities and to experiment with changes necessary to meet new technological and social challenges, but agree to operate within an international framework. This framework, while less powerful than the central administration of a federal government, comprises a series of substantive and procedural commitments that promote the coordination of both the present intellectual property system as well as future international intellectual property lawmaking. Part I demonstrates the centrality of national autonomy throughout the history of international negotiations over intellectual property. Part II analyzes the decisions of the WTO in intellectual property cases, and finds them lacking in many respects. Looking to the future, Part III develops a framework for integrating the increasingly fragmented international system and proposes the recognition of an international intellectual property acquis, a set of longstanding principles that have informed, and should continue to inform intellectual property lawmaking. The acquis would include both express and latent components of the international regime, put accessregarding guarantees such as user rights on a par with proprietary interests and enshrine the fundamental importance of national autonomy in the international system. Page 1 of 6

2 The Challenges of the TRIPS Agreement Published in print: Published Online: May acprof:oso/ This Chapter presents a synopsis of the argument advanced in the book. It recognizes the comprehensiveness of TRIPS and the theory of comparative advantage that underlies its adoption as part of a trade regime. But it challenges the understanding of TRIPS as a supranational code, a comprehensive code of intellectual property law that dictates exactly how WTO members must protect knowledge-intensive goods. Instead, it emphasizes that intellectual property is a complex regime that reflects notions of balance, diversity and historical contingency. There must be a balance between the interests of proprietors in securing a return from their investments and the interests of followers and the public in a robust domain of accessible knowledge. Because countries with different economic and cultural conditions will need to adopt different approaches to intellectual property, a one-size-fits-all code is undesirable. And as the creative ecosystem evolves, so too must intellectual property law. These features of intellectual property law support the need to view TRIPS through a neo-federalist lens. The Chapter illustrates the stakes involved in looking at TRIPS as a code and, conversely, at the advantage of seeing it from a neofederalist perspective, by examining the controversy over gene patents. The History and Character of TRIPS: How It Shapes the Contemporary Debate Published in print: Published Online: May acprof:oso/ This Chapter situates the TRIPS Agreement in the historical context of the international intellectual property system, most notably the development of the Paris and Berne Conventions. It demonstrates the centrality of national autonomy (and the commitment to territoriality) Page 2 of 6

3 throughout the history of international negotiations over intellectual property. It assesses the negotiation of TRIPS and the final instrument itself through the frame of international and intellectual property policy, with the benefit of hindsight, and from the perspective of more than a decade of experience with the Agreement. The principal accounts of how TRIPS came into being (the exchange narrative and the coercion narrative) both paradoxically may bolster the premise that developing countries signed up to something approaching a supranational code. A more nuanced examination tells a different story, one that suggests that, although TRIPS gave teeth to international obligations by embedding them within a system with enforcement mechanisms, it must be viewed as a compromise that recognizes each state s continuing role in formulating intellectual property policy within the context of an international arrangement. The Chapter illustrates the significance of the different visions of TRIPS by analysing whether the Agreement precludes WTO member states from adopting working requirements in their patent laws. The Dispute Settlement Understanding: Interpretation of the Substantive Features of the TRIPS Agreement Published in print: Published Online: May acprof:oso/ This Chapter analyzes the decisions of the Dispute Settlement Body (DSB) in intellectual property cases to assess whether national laws can be adapted to reflect diversity, balance and historical contingency. It does so by considering three initiatives: (1) raising the height of the inventive step (2) creating new statutory defenses to liability for patent infringement; and (3) refusing to award injunctions automatically to prevailing plaintiffs. These initiatives implicate a nation s ability: to ensure access to medicines, a value highlighted in the amendment of TRIPS arising out of the Doha Declaration; to offer gene-based diagnostic testing without permission of patentees; and to deal with the costs of patent trolls. In some respects the DSB has promoted the values underlying neo-federalism. However, panels often pursue a formalistic reading of the Agreement and one that is largely devoid of normative content. Instead, if TRIPS is to be resilient, panels must have regard to the normative underpinnings of intellectual property law, including the Objectives and Principles of the TRIPS Agreement. And panels will need Page 3 of 6

4 to establish benchmarks against which to measure claimed deviations, requiring regard to national practices. Interpretation Continued: The Structural Features of the TRIPS Agreement Published in print: Published Online: May acprof:oso/ This Chapter further critiques DSB decisions by considering a mechanism to share examination workloads among national patent offices, and the EU s Database Directive, which seeks to expand protection globally via a reciprocity provision. This allows examination of TRIPS provisions that might be seen as structural: the national treatment provision, and the most favoured nation principle (MFN). Both principles have long been part of the GATT. National treatment offers an appealing approach to the regulation of trade in knowledge-intensive products. But the Chapter questions the wisdom of applying MFN to intellectual property. The Chapter also criticises the interpretation of Article 27, which prohibits certain forms of discrimination in the patent field, as structural. These different provisions must be interpreted in a manner that reflects their roles in protecting the integrity of the international intellectual property, trade, and patent systems. Challenged laws should receive different levels of scrutiny under different provisions, and the distinction between de facto and de iure discrimination must be recognised. The Chapter also discusses other TRIPS provisions, and priority provisions incorporated from the Paris Convention, which have structural dimensions. And it suggests that TRIPS contains provisions that serve as functional substitutes for national autonomy guarantees found in GATT. TRIPS and Domestic Lawmaking Published in print: Published Online: May acprof:oso/ Page 4 of 6

5 This Chapter considers whether TRIPS is sufficiently neofederalist to accommodate national institutional and political realities. The WTO must confront the political reality of packaging, diffusion, and capacity. An initiative may be more acceptable if the burdens of new rights are packaged with offsetting benefits. Thus, adjudicators should take into account the broader context in which a challenged provision was enacted: a provision reducing levels of protection may survive scrutiny if part of a legislative tradeoff that preserves market exclusivity overall. Moreover, it can take time for new technologies to diffuse and for the political system to fully assimilate them. States need flexibility to experiment with different levels of protection and develop an understanding of how best to regulate. The GATT regime contains provisions, such as those that allow for negotiation of compensatory concessions or the temporary suspension of obligations, which reflect a concern for diffusion. TRIPS should be read in ways that allow greater national autonomy in a period of diffusion. Finally, countries need a sophisticated legal and administrative infrastructure to fully assess options. This capacity problem is especially acute for developing countries, which must inform adjudication and stimulate procedural reforms both in the DSB and Council for TRIPS. The WTO, WIPO, ACTA, and More: Fragmentation and Integration Published in print: Published Online: May acprof:oso/ International intellectual property lawmaking since TRIPS has involved many different actors, in many different fora, under a variety of conditions, leading to the phenomenon of fragmentation. This Chapter discusses many of these lawmaking initiatives (such as bilateral free trade agreements, ACTA, the Transpacific Partnership Agreement, WIPO Development Agenda, and soft law instruments). It addresses both efforts at further commodification and the promulgation of counternorms that clarify the space where TRIPS does not require commodification. The Chapter develops a framework for integrating these developments into the WTO regime and thus gaining the benefits of regulatory competition while minimizing the costs of fragmentation. It rejects the approach of aggressive integration suggested by the International Law Commission; TRIPS offers ample opportunities for norm-integration- Page 5 of 6

6 through-interpretation. The weight to be given to materials drawn from outside the WTO should reflect the source and timing of the instrument, governance issues, and the relationship between the coverage of the instrument and that of TRIPS. The WTO can also reduce fragmentation through its lawmaking activities, including deliberations in the Council for TRIPS. Treating other specialised institutions (eg the WHO) as partners in the international system might facilitate regulatory cooperation, and the Chapter thus suggests procedural mechanisms to take advantage of that expertise. An International Acquis: Integrating Regimes and Restoring Balance Published in print: Published Online: May acprof:oso/ This Chapter proposes a new paradigm to structure international intellectual property law. Specifically, it suggests that the time is ripe to recognize an international intellectual property acquis. The content of the acquis is drawn from national and international law (including human rights instruments) along with associated jurisprudence and scholarship. It is informed by recognition of core intellectual property concerns: the cumulative nature of intellectual property, the contingent nature of technology, and a commitment to diversity. The acquis includes principles directed at solving problems of interdependence and takes account of the pedigree of a principle. It encompasses both express and latent components of the international regime and enshrines the fundamental importance of national autonomy in the international system. The acquis would clarify the normative underpinnings of intellectual property law and thus improve DSB adjudication. Prospectively, the acquis would transcend TRIPS and create a legal framework to structure future international lawmaking. It would thus reduce the incidence of fragmentation and serve as a counterweight to political pressures that induce TRIPS-plus agreements. More ambitiously, the acquis could promote a reconceptualization of international intellectual property law as explicitly recognizing the interests of users as on a par with the interests of producers. Page 6 of 6