Fostering Dynamic Innovation, Development and Trade: Intellectual Property as a Case Study in Global Administrative Law

Abstract

International intellectual property law furnishes a case study on the need for norms of global governance. In an earlier era, multilateral intellectual property instruments recognized the dynamic nature of information production; under their terms, nations could balance the interests of producers in earning a return from their intellectual investments against the interests of users in accessing new knowledge for both consumptive and productive purposes. Now that IP is part of the WTO trade regime, information streams have been intensely commodified and an emphasis has been placed on raising IP protection to ever-higher levels. While there are traders in the North and in some emerging economies that are reaping rewards from this system, the TRIPS Agreement is operating as a tax on the South and is chilling innovation is the North. Ostensibly, TRIPS permits nations to strike the appropriate local balance between proprietary and access interests. However, because the drafters of TRIPS incompletely theorized the function of exclusive right regimes, WTO adjudicators have had difficulty evaluating challenges to public-regarding legislation and nations have little guidance for enacting TRIPS-compatible law. But TRIPS does include two potential saving graces. It contemplates close cooperation with WIPO, which now administers upward of 20 intellectual property instruments. Furthermore, the Agreement sets up a Council to oversee compliance. The combined expertise of these two entities could be exploited to rectify the deficits in TRIPS. This paper explores the institutional design issues that must be resolved for these institutions to function effectively. These include mechanisms for incorporating WIPO's expertise into the interpretive process, for insuring that WIPO and the Council operate within the scope of authority delegated by WTO members, for controlling forum shopping, and ensuring transparency, competence, and participation. It ends with suggestions for substantive reform to supplement these administrative devices.