IILJ Working Paper 2008/4 (Global Administrative Law Series)

Fostering Dynamic Innovation, Development and Trade: Intellectual Property as a Case Study in Global Administrative Law

Rochelle Cooper Dreyfuss

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International intellectual property law furnishes a case study on the need for norms of global governance. In an earlier era, multilateral intellectual property instruments recognized the dynamic nature of information production; under their terms, nations could balance the interests of producers in earning a return from their intellectual investments against the interests of users in accessing new knowledge for both consumptive and productive purposes. Now that IP is part of the WTO trade regime, information streams have been intensely commodified and an emphasis has been placed on raising IP protection to ever-higher levels. While there are traders in the North and in some emerging economies that are reaping rewards from this system, the TRIPS Agreement is operating as a tax on the South and is chilling innovation in the North.

Ostensibly, TRIPS permits nations to strike the appropriate local balance between proprietary and access interests. However, because the drafters of TRIPS incompletely theorized the function of exclusive right regimes, WTO adjudicators have had difficulty evaluating challenges to public-regarding legislation and nations have little guidance for enacting TRIPS-compatible law. But TRIPS does include two potential saving graces. It contemplates close cooperation with WIPO, which now administers upward of 20 intellectual property instruments.
Furthermore, the Agreement sets up a Council to oversee compliance. The combined expertise of these two entities could be exploited to rectify the deficits in TRIPS.

This paper explores the institutional design issues that must be resolved for these institutions to function effectively. These include mechanisms for incorporating WIPO’s expertise into the interpretive process, for insuring that WIPO and the Council operate within the scope of authority delegated by WTO members, and for controlling forum shopping. Another constellation of issues relates to questions of transparency, competence, and participation. While it is attractive to bring together the intellectual property expertise of WIPO and the trade expertise of the TRIPS Council, it is necessary to take a close look at the source of these institutions’ knowledge bases. The confluence of interests among the South, low protectionists in the North, and emerging economies suggests that the dynamics of negotiation within WIPO and the Council are changing. Nonetheless, it is imperative to develop global administrative norms and, as important, a means for insuring their application. In addition to these rules, which are largely derived from domestic administrative law, special attention needs to be paid to the international context. Indeed, because TRIPS could keep countries at a comparative disadvantage disadvantaged, there is an obligation to develop both procedural and substantive norms to protect their interests.