Value Divergence in Global Intellectual Property Law

It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a robust but flexible global intellectual property system. The Article argues that the trade-based approach to global intellectual property law undermines the apparent gains made in international intellectual property * J. Janewa OseiTutu, Assistant Professor of Law, Florida International University College of Law (2012); LL.M. McGill University, J.D. Queen’s University, B.A. (Hons.) University of Toronto. I would like to thank Jessie Allen, Pat K. Chew, James T. Gathii, Patricia Judd, Charles Jalloh, Doris E. Long, Peter K. Yu, the participants of the Junior International Law Scholars Association and Yale Journal of International Law Young Scholars Conference, the participants of the Northeast Regional Teaching and Scholarship Conference at Albany Law School, and the participants of the Drake Intellectual Property Scholars Roundtable for their valuable feedback on this Article. For their helpful suggestions on this work at its early developmental stage, I thank Rachel Anderson, Deborah Brake, Ronald Brand, Jules Lobel, Audrey McFarlane, Siegfried Wiessner, the participants of the Lutie Lytle Workshop at the University of Kentucky School of Law, and the participants of the University of Pittsburgh School of Law Junior Faculty Workshop. My thanks to the Deans Mary Crossley and Lu-in Wang at the University of Pittsburgh School of Law for the research support that helped to make this Article possible. I am grateful to Elizabeth Youngkin for her outstanding research assistance, and Marc Silverman for the superb library support. Finally, my thanks to Renee E. Turner, Graham N. Rehrig, and their colleagues at the Indiana Law Journal for their excellent work. All errors and omissions are my own. The views expressed herein do not represent the views of any organization with which I currently am, or have previously been, affiliated. 1. 10 Benefits of the WTO Trading System, WTO (2008), http://www.wto.org/english/thewto_e/whatis_e/10ben_e/10b00_e.htm [hereinafter WTO]. 2. China Agrees to Significant Intellectual Property Rights Enforcement Initiatives, Market Opening, and Revisions to Its Indigenous Innovation Policies That Will Help Boost U.S. Exports at the 21st Session of the U.S.-China Joint Commission on Commerce and Trade, U.S. DEP’T OF AGRIC., http://www.usda.gov/wps/portal/usda/usdahome?contentidonl y=true&contentid=2010/12/0663.xml (statement by U.S. Trade Rep. Ron Kirk). 1640 INDIANA LAW JOURNAL [Vol. 87:1639 protection because it promotes a utilitarian economic view of intellectual property law while minimizing other values. Trade-based intellectual property also reduces the need for intellectual property interests to align, and therefore fails to achieve mutually beneficial agreement on substantive intellectual property law and policy. ABSTRACT 1639 INTRODUCTION 1640 I. TRADE-RELATED INTELLECTUAL PROPERTY AS A STRATEGIC DECISION WITH A SHORT-TERM VISION 1647 A. BRIEF BACKGROUND TO TRIPS 1648 B. STRATEGIC ADVANTAGES OF THE TRADE-BASED STRATEGY 1649 C. FLAWS IN THE TRADE-BASED STRATEGY 1651 II. TRIPS COMPARED TO OTHER WTO AGREEMENTS 1653 A. THE TRIMS AGREEMENT AND THE SPS AGREEMENT 1654 B. THE TRIPS AGREEMENT 1654 III. HOW INTELLECTUAL PROPERTY DIFFERS FROM TRADITIONAL TRADE IN GOODS 1656 IV. STRENGTHENING THE GLOBAL INTELLECTUAL PROPERTY REGIME THROUGH VALUE DIVERGENCE 1658 V. NORM SETTING BY THE NATIONS THAT PRODUCE INTELLECTUAL PROPERTY PROTECTED GOODS 1662 A. THE TRIPS NARRATIVE 1662 B. BILATERAL TRADE AGREEMENTS 1665 C. PLURILATERAL TRADE AGREEMENTS 1667 D. WHY THE WTO IS STILL A RELEVANT AND BETTER ALTERNATIVE ..... 1669 VI. TRIPS DISPUTES AND VALUE DIVERGENCE 1671 A. THE WTO CHINA COPYRIGHT DISPUTE AS AN EXAMPLE OF VALUE DIFFERENCES 1672 B. THE WTO CANADA PATENT PHARMACEUTICALS DISPUTE AS AN EXAMPLE OF VALUE DIFFERENCES 1675 VII. VALUING DIVERSITY 1680 A. TRIPS RECOGNIZES VALUE DIVERSITY 1682 B. VALUE DIVERGENCE FACILITATES INTEREST CONVERGENCE 1685 C. WHAT IF THERE IS NO MIDDLE GROUND? 1691 CONCLUSION 1693 1639 INTRODUCTION 1640 I. TRADE-RELATED INTELLECTUAL PROPERTY AS A STRATEGIC DECISION WITH A SHORT-TERM VISION 1647 A. BRIEF BACKGROUND TO TRIPS 1648 B. STRATEGIC ADVANTAGES OF THE TRADE-BASED STRATEGY 1649 C. FLAWS IN THE TRADE-BASED STRATEGY 1651 II. TRIPS COMPARED TO OTHER WTO AGREEMENTS 1653 A. THE TRIMS AGREEMENT AND THE SPS AGREEMENT 1654 B. THE TRIPS AGREEMENT 1654 III. HOW INTELLECTUAL PROPERTY DIFFERS FROM TRADITIONAL TRADE IN GOODS 1656 IV. STRENGTHENING THE GLOBAL INTELLECTUAL PROPERTY REGIME THROUGH VALUE DIVERGENCE 1658 V. NORM SETTING BY THE NATIONS THAT PRODUCE INTELLECTUAL PROPERTY PROTECTED GOODS 1662 A. THE TRIPS NARRATIVE 1662 B. BILATERAL TRADE AGREEMENTS 1665 C. PLURILATERAL TRADE AGREEMENTS 1667 D. WHY THE WTO IS STILL A RELEVANT AND BETTER ALTERNATIVE ..... 1669 VI. TRIPS DISPUTES AND VALUE DIVERGENCE 1671 A. THE WTO CHINA COPYRIGHT DISPUTE AS AN EXAMPLE OF VALUE DIFFERENCES 1672 B. THE WTO CANADA PATENT PHARMACEUTICALS DISPUTE AS AN EXAMPLE OF VALUE DIFFERENCES 1675 VII. VALUING DIVERSITY 1680 A. TRIPS RECOGNIZES VALUE DIVERSITY 1682 B. VALUE DIVERGENCE FACILITATES INTEREST CONVERGENCE 1685 C. WHAT IF THERE IS NO MIDDLE GROUND? 1691 CONCLUSION 1693