A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime - Chapters 6-7

These concluding Chapters (6-7) from our book A Neofederalist Vision of TRIPS: The Resilience of the International Intellectual Property Regime address the future of international intellectual property lawmaking. Since TRIPS, this has involved many different actors, in many different fora, under a variety of conditions, leading to the phenomenon of fragmentation. Chapter 6 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 softens the approach to integration suggested by the International Law Commission and shows that TRIPS offers ample opportunities for norm-integration-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. Chapter 7 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 the problems to DSB adjudication that we identified in earlier chapters of the book. 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.