Currents and Crosscurrents in the International Intellectual Property Regime

Loyola of Los Angeles Law Review, Vol. 38, pp. 323-443, 2004

MSU Legal Studies Research Paper No. 02-12

122 Pages Posted: 11 Nov 2004 Last revised: 8 May 2023

See all articles by Peter K. Yu

Peter K. Yu

Texas A&M University School of Law

Abstract

Since the establishment of the TRIPS Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during TRIPS negotiations. Interestingly, intellectual property rights holders feel equally threatened by recent developments, in particular the development of the Doha Declaration on the TRIPS Agreement and Public Health, the World Summit on the Information Society, the WIPO Development Agenda and the Geneva Declaration on the Future of WIPO.

This article challenges the incomplete views held by those on both sides of the international intellectual property debate and argues that the recent developments are neither new nor surprising. To help us understand these developments, the article traces the historical development of the international intellectual property regime and demonstrates that this regime is the product of repeated interactions between an evolving set of currents and crosscurrents. While the currents of multilateralism push for uniformity and increased harmonization, the crosscurrents of resistance protect national autonomy and international diversity. By bringing together these currents and crosscurrents, this article demonstrates that the international intellectual property regime is an ongoing project that provides opportunities and crises for both developed and less developed countries, as well as for rights holders and individual end users.

This article traces the origins of the Berne and Paris Conventions, the TRIPS Agreement and the 1996 WIPO Internet Treaties. It describes how intellectual property lawmaking shifted from the WTO back to WIPO in the mid-1990s, despite the successful negotiation of the TRIPS Agreement. It also explores the five crosscurrents that have emerged in the international intellectual property regime in recent years: reciprocization, diversification, bilateralism, non-nationalization and abandonment. This article explains how these crosscurrents may undercut international harmonization efforts and create new challenges for this regime. It concludes by providing observations on the international intellectual property regime in five different areas: bargaining frameworks, regime development, global lawmaking, harmonization efforts and judicial trends.

Suggested Citation

Yu, Peter K., Currents and Crosscurrents in the International Intellectual Property Regime. Loyola of Los Angeles Law Review, Vol. 38, pp. 323-443, 2004, MSU Legal Studies Research Paper No. 02-12, Available at SSRN: https://ssrn.com/abstract=578572

Peter K. Yu (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

HOME PAGE: http://www.peteryu.com/

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