The US and EU’s Intellectual Property Initiatives in Asia: Competition, Coordination or Replication?

Intellectual property rights (IPRs) have been a priority for the European Union and the United States. However, over the past two decades, the EU and US have failed to advance their preferred IPRs standards through multilateral forums and have pursued bilateral alternatives instead. How have the EU and US pursued their strategies in this fragmented environment? Looking specifically at the Asia-Pacific, we compare their bilateral initiatives on IPRs across three strategies: treaty-making, coercion and socialization. Through this analysis, we examine whether the EU and US’s bilateral actions indicate regulatory competition, coordination or replication. We find that the overall tendency has been towards replication, which raises questions about the reasons for this redundancy and its policy consequences. As the rise of bilateralism is not unique to IPRs, our findings have implications for global governance more generally. Policy Implications • Asian countries negotiating IPRs with the US or the EU should take into account the fact that making concessions to the US is unlikely to reduce pressure from the EU and vice versa, even though concessions made bilaterally benefit IPR holders globally. This makes IPR concessions even less attractive to Asian countries. • EU and US leaders should strive to improve the coordination of their shared goals. When they emulate other countries’ interventions, they would gain from assessing the potential marginal contribution generated by an additional intervention. Specialization may be more beneficial than duplication when it comes to resource use. • Asian countries risk paying for EU/US competition over geographical indications because satisfying them both is increasingly difficult. In this context, Asian countries should prioritize multilateralism and support negotiations in multilateral settings, despite their former criticisms of IPR multilateral institutions. The heterogeneity of national regulations can impede global value chains. This phenomenon, known as ‘rule overlap’ (Farrell and Newman 2016, p. 721) or ‘material externality’ (Lake, 2009, p. 229), creates incentives for states to cooperate and reduce transaction costs. However, incentives for harmonization also create opportunities for regulatory competition because states may compete to ensure that their rules are adopted instead of their competitors’ rules. Powerful states, in particular, use various mechanisms to diffuse their own regulations globally (; Drezner, 2007; Farrell and Newman 2015, 2016). One area that can be subject to both regulatory cooperation and regulatory competition is intellectual property rights (IPRs). Over the course of the 20th century, states worked towards a greater degree of harmonization of IPR rules in multilateral settings, such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO). The most significant advancement in multilateral IPR rule-setting was the adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995, binding WTO members to common standards of IPR protection and enforcement (Archibugi and Filippetti 2010). The United States and the European Union were instrumental in securing robust IPR standards in the framework of the TRIPS agreement (Sell, 2003). Arguably, this strategy of pursuing common interests in multilateral organizations remains the EU and US’s first best option (Drezner, 2007). However, this option is less available today than it was 25 years ago. Coalitions of developing countries, non-governmental organizations (NGOs) and activists have fiercely criticized multilateral IPR forums for being biased in favour of IPR holders (David and Halbert 2017; Haunss and Shadlen 2009; Helfer, 2004; May, 2007; Murphy and Kellow 2013; Sell Global Policy (2020) doi: 10.1111/1758-5899.12885 © 2020 Durham University and John Wiley & Sons Ltd. Global Policy