Technical Assistance As a Hedge to Intellectual Property Exclusivity

Abstract

This article develops the connection between neo-colonialism and IP. The TRIPS Agreement and other hard norms such as TRIPS-plus bilateral treaties concluded between the EU, the USA and developing countries further contribute towards such neo-colonial control. Even so, an often overlooked but important aspect of such control is that once these treaties have been concluded, the EU, the USA and other co-opted international organizations such as WIPO actively offer technical assistance. The policy of technical assistance has often been criticized for introducing levels of IP protection that are mostly inappropriate for the social and economic development of developing countries. This chapter argues that technical assistance – as a third layer of norms, in addition to existing multilateral, mega-regional and bilateral agreements – has become the ‘new informality’ emphasized in the new constitutionalist literature. Technical assistance programmes further hedge IP exclusivity by creating an elite IP community in developing countries that sees things through the dominant industrialized-country approach, effectively leading to epistemic lock-in. Technical assistance, therefore, functions as a facilitator of the constitutionalization of IP rights.