The International Intellectual Property System: Treaties, Norms, National Courts, and Private Ordering

Abstract

Although part of the political impetus for international intellectual property law making has long come from the economic gains that particular countries could secure in the global market, the recent situation of intellectual property within the institutional apparatus of the trade regime has been an important factor in the transformation of the classical system of international intellectual property law. This chapter analyses various aspects of this transformation. It suggests that viewing intellectual property through the prism of trade alone offers an incomplete explanation of the changes that have occurred in international intellectual property law making. For example, a full account of the contemporary system must reflect the role of both litigation in national courts and private ordering by commercial actors in establishing international intellectual property norms. This chapter stresses that these new contributors to the international system must be subject to no lesser scrutiny than traditional public international instruments such as treaties. The chapter also discusses the increasingly quick resort to international institutions in the field of intellectual property law. To ameliorate the costs associated with the speedy development of international rules, and perhaps to ensure that some international solution is adopted, policy makers have begun more overtly to support the adoption of soft law norms rather than hard law treaty obligations. In response, those skeptical of these trends in international intellectual property law making have sought to slow down the process or bring it to a complete halt. In order to achieve a political climate where public international law imposes fewer constraints on national law makers (particularly law makers in developing countries), skeptics have adopted a number of strategies, including the multiplication of international institutions in which intellectual property is considered, and the concomitant development of a range of rival norms that have massively complicated the political economy of public international intellectual property law. Using examples drawn primarily from copyright and trademark law, I illustrate the pressure to accelerate internationalization, the varying strength of adopted norms, and the changes to the political climate in which public international law making is occurring. To some extent, these changes reflect increased political and popular attention to trade and development. However, regardless of the catalyst, these systemic changes remain crucially important to trade and development because of the entanglement of intellectual property with trade and development policy.

Keywords: TRIPS, WTO, private ordering, private international law, WIPO