The Complex Nature of the Global Intellectual Property System
The World Trade Organisation (WTO) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was successfully negotiated at the end of the Uruguay Round of The General Agreement on Tariffs and Trade (GATT) in 1994. For many it signalled the beginning of a new global system of intellectual property rights; a regime wherein the WTO and the TRIPS Agreement would be of central importance. Scholars and lawmakers alike believed that the WTO would displace the World Intellectual Property Organisation (WIPO) and become the “…dominant institution of international intellectual property law.”(1)
This, however, has not proven the case. Rather than a simple question of WTO or WIPO, the current regime of intellectual property rights is far more convoluted and complex in nature. The system is becoming increasingly dispersed and decentralised and many new institutions or actors have emerged. As Dinwoodie states, these include “…national courts developing for the first time a private international law of intellectual property”, “…nongovernmental organizations (NGOs)”, “…new actors whose authority of remit are not linked to any particular nation-state”, “…existing international institutions that now find their work impacted by intellectual property law” and “…technology that operates without regard to territory”.(2)
It can thus be seen that the current regime of intellectual property has not developed as conveniently as many had hoped it would. While somewhat of an inconvenient truth, it is important to assess the current system as objectively as possible. A complex, decentralised system of intellectual property protection with many different actors and institutions may well offer the perfect solution to what has proven a very stubborn problem.(3) This is supported by Dinwoodie who highlights a number of key advantages of a decentralised system, for example, a national court, wherein private international law on intellectual property has developed, and if sufficiently transparent, may prove far more dynamic and responsive than the treaty process of the WTO or the WIPO. It is also “…less subject to the political demands that historically have burdened the treaty process and that continue to limit its efficacy.”(4) I would go one step further than Dinwoodie in this regard and suggest that given that power is not evenly distributed amongst WTO or WIPO members, a key advantage of a decentralized system of intellectual property is that these new non-treaty actors and institutions may reflect the interests of the developing countries far more closely than the WTO, wherein developed countries have been able to exert a great deal of influence.
The emergence of these new actors within the realm of international intellectual property has given rise to a number of interesting and exciting opportunities however there are also a number of concerns and disadvantages such as the problem of transparency and monitoring. While the WTO has many flaws, given the nature of the treaty system, it can be held accountable if required.(5) It is far more difficult to ensure a sufficient level of transparency in a complex, decentralized system with many new actors and institutions.
(1) Graeme Dinwoodie, “The International Intellectual Property Law System: New Actors, New Institutions, New Sources”, 10 Marq. Intell. Prop. L. Rev. 205 (2006)
(3) Peter M Gerhart, ‘The Tragedy of Trips’, Michigan State Law Review, (2007) 183-184, Available online at:http://www.msulawreview.org/PDFS/2007/1/Gerhart.pdf
(4) Dinwoodie, (2006)
(5) WTO Website, ‘WTO gets high marks for accountability, transparency’, Available online at:http://www.wto.org/english/news_e/news03_e/global_account_report_11feb03_e.htm