An International Acquis

Abstract

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.