Corporate-Led Regulation of Intellectual Property

Abstract

Agreement on Trade-Related Aspects of Intellectual Property Rights (better known as the TRIPS Agreement) within the context of changing patterns of private and state authority. Even though the literature on the TRIPS Agreement is extensive, most studies take a legal or economic perspective on the globalization of intellectual property rights. Comprehensive studies by political scientists on intellectual property and global governance are relatively rare. Christopher May's book, A Global Economy of Intellectual Property Rights (2000) considers the problematic nature of cosmopolitan justifications for the global protection of intellectual property. Knowledge Diplomacy by Michael Ryan (1998) explains the TRIPS Agreement as a second stage in the process of trade liberalization that began with the 1947 General Agreement on Tariffs and Trade (GATT). Sell's book picks up both these themes in order to explain, from a US perspective, the reasons for the emergence of the TRIPS Agreement at the conclusion of the Uruguay Round of Multilateral Trade Negotiations in 1994 (Blakeney 1996). The inquiry is therefore twofold. First, how did a group of private actors succeed in establishing a comprehensive framework of rules for the global protection of intellectual property? Second, what sort of factors determined the success of the enterprise as an international legislative initiative? The focus of Sell's analysis is the knowledge-based transnational corporation. Her argument is that such corporations have a structure, resource base, and planning horizon approaching that of governments. As a result, they were capable of initiating and managing a project to promote the globalization of intellectual property rights. Private Power, Public Law offers a well-researched account of the formation, organization, and transnational mobilization of the Intellectual Property Committee-an ad hoc group of some twelve CEOs representing US software, pharmaceutical, entertainment, and financial services corporations that served as an agency for international legislative reform. It explains how the Intellectual Property Committee had the resources to construct a draft text and the capacity to mobilize the support of their counterparts in Europe and Japan in order to confidently present a draft agreement to the GATT Secretariat in 1988. Chapter 1 considers various theoretical approaches that might explain the Intellectual Property Committee's role in the emergence of TRIPS. Rational choice theory is rejected because it neglects the broader causational structures encompassing capital market deregulation and international institutions, especially the World Trade Organization (WTO) and the World Intellectual Property Organization. With panoramic intent, chapter 2 adopts a morphogenetic approach to structure and agency in order to explain the emergence and impact of the new global intellectual property regime under the aegis of the WTO. This methodology allows us to see the emergence of TRIPS against a background of cyclical institutional change, consisting of a first cycle of negotiation and construction and a second cycle of reaction by public interest groups. In the first cycle, structural change is seen as a necessary but insufficient condition for the eventual emergence of TRIPS.