Harmonization: Top down, Bottom Up — And Now Sideways? The Impact of the IP Provisions of Megaregional Agreements on Third Party States

Abstract

This chapter of Megaregulation Contested: Global Economic Ordering After TPP (Benedict Kingsbury, Richard Stewart, Paul Mertenskötter, and Thomas Streinz eds.) examines the impulse to include intellectual property within the scope of a megaregional trade agreement that is largely devoted to the promotion of a particular vision of economic ordering and to the adoption of a regional framework supportive of competition, investment and regulatory coherence. Using the TPP as an example, it argues that megaregional intellectual property agreements not only lead to changes in the law within member states, but can also have strong effects outside those states. The innovation sector within the region’s trading partners must adapt to the new regime of it wishes to continue to trade in the region. That can alter the intellectual property politics in these other countries. Furthermore, members of the epistemic community within the new regime influence those outside it. Finally, the law of the megaregion has an impact on the ability of the member states to negotiate future agreements with third countries and can also affect the way that existing agreements are interpreted. The last section of the chapter discusses the normative implications of megaregional spillover effects on third countries. While a megaregional exposes countries that had no role in the negotiation process to a changed legal landscape, it also creates a new way to harmonize intellectual property law, what I call “sideways” harmonization. Third countries can join at their own pace and in a manner that responsive to their own creative sectors. These agreements also offer an opportunity to experiment with transnational trade rules, such as rules on in transit seizure, parallel importation, and cross-border enforcement.

Keywords: TPP, Intellectual Property, Harmonization, Megaregional Trade Agreements