jake carberry

a blog about all things economics, politics and law

Month: January, 2013

The Case for ‘Regime Shifting’

The importance of perspective in any discussion regarding the international intellectual property system is unquestionable. This is particularly evident between those who stand to gain from a more stringent, well-defined and properly enforced intellectual property system and those who do not, such as non-rights holders, specifically those from developing countries. It is this difference in perspective that has given rise to the phenomenon of ‘regime shifting’ in the international intellectual property system wherein IP discussion and treaty negotiation has been moved from forum to forum. Many have been quick to criticise the ‘regime shifting’ that has occurred, for example from WIPO to the WTO, on the grounds that it was merely a political manoeuvre by the developed countries.(1) It has been suggested that, as the driving force behind the transition, developed countries, such the US, wished to situate IP discussion in a forum wherein their negotiating power was greatest, and thus, provided more scope for the furthering of their economic and political interests. This blog, however, will seek to show that the regime shift from WIPO to the WTO was not simply a ‘power play’ but rather it was necessary given the weak enforcement mechanism of the Berne and Paris Conventions, and thus, the failures of WIPO.

The Move from WIPO to WTO

The move away from WIPO towards the WTO certainly appears to support the ‘power play’ critique outlined above. Through the bundling of IP negotiation with other areas of trade such as agriculture, heavily relied upon by developing countries, the developed countries greatly increased their negotiating power. However, it is important to note the weaknesses of the Berne and Paris Conventions in their provisions for dispute resolution. Both provided a mechanism by which members could send disputes to the International Court of Justice, but the fact that members could opt out of this provision at accession or ratification severely limited its effectiveness.(2) It can thus be seen that while Berne and Paris represented great progress in the international IP system, these treaties were only as effective as their enforcement allowed them to be. No dispute has been brought before the ICJ under Berne or Paris, suggesting that enforcement under WIPO was insufficient and ineffectual.(3) The move towards the WTO can be justified, then, given that it had proven very successful in trade-related dispute resolution.

The Future Trajectory

In terms of the development of the international intellectual property system, specifically in the field of enforcement, it is difficult to predict the extent to which the current system is still likely to change. While the shift towards the WTO away from WIPO was clearly justified in terms of providing for stronger enforcement, IP infringement remains one of most prevalent crimes in modern global society. This has led many countries to contemplate a regime shift away from the WTO back towards more tightly negotiated, plurilateral agreements that are more closely aligned with their economic and political interests. One example of which is the somewhat controversial Anti-Counterfeiting Trade Agreement (ACTA).(4) As outlined above, moves such as these are very frequently condemned however if we consider the persistence of IP infringement, regime shifting is not merely an example of the influence of the developed countries but rather is entirely necessary. I would conclude that while a regime shift towards plurilateral agreements, such as ACTA, looks likely, such a move should not be disregarded as a circumvention of the WTO by the developed countries. Instead, it should be welcomed based on the assumption that it will provide for more effective enforcement.

(1) Martin Khor, Globalisation and the South: Some Critical Issues, United Nations Conference
on Trade and Development, Discussion Paper 147 (2000) http://www.unctad.org/en/docs/
dp_147.en.pdf p.5
(2) http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726
(3) Globalisation of the Mass Media, http://books.google.co.uk/books?id=k05pIX7_kkAC&dq=no+dispute+under+berne&source=gbs_navlinks_s, p.115
(4) http://trade.ec.europa.eu/doclib/docs/2011/may/tradoc_147937.pdf


The United States and the Berne Convention: The Question of Moral Rights

The Berne Convention for the Protection of Literary and Artistic Works, established in 1886 in Berne, Switzerland, is the oldest, but also one of the most important, multilateral copyright treaties. Members of the Berne Union are required to recognize the copyright of works of authors and creators from other members of the Berne Union as it recognizes the copyright of its own citizens.(1) The Berne provisions were widely accepted, but the United States refused to become a party to the convention for over a century, as it would have required major amendments to their domestic copyright laws. One of the main issues for the US was the stipulation that they would need to remove many of the formalities in use domestically, such as those involved in the registration of copyright works and mandatory copyright notice. Perhaps the greatest obstacle, however, was the fiercely debated notion of ‘moral rights’. The US did not wish to recognize or include moral rights in the international intellectual property framework whereas, and as outlined in Article 6bis, the Berne Convention did acknowledge and protect moral rights, and specifically the “attribution” and “integrity” of the artist. (2) Despite their stance on moral rights, the US did eventually sign the Berne Convention in 1988, and it is thus significant to examine their reasons for doing so.

Firstly, it is important to explore the US’ initial reluctance to join the Berne Convention. As aforementioned, the main stumbling block was the acknowledgement of moral rights. The US felt that domestically it already accommodated moral rights through statutory and common law channels, and that evidence of the recognition of moral rights could be found in their contract, trademark and tort laws. (3) Moreover, the US was wary of the relationship, or lack thereof, between moral and economic rights in the Berne Convention. These rights were seen as entirely separate and so even after the transfer of economic rights (the sale of a piece of art for example) the artist retains moral rights over his creation (4), which of course could prove problematic. This protection also exists after the death of the artist, at least until the expiration of the economic rights. It can also be seen that, independently of the convention, the US had found other successful means of protection through various multilateral and bilateral agreements and the back-door provision to the Berne Convention: that is, the protection of non-Berne members by Berne if they simultaneously publish domestically and in a Berne-member state. (5)

That being said, the US did eventually sign the Berne Convention, and arguably not due to any great need for increased protection – as we have seen, the US could protect itself through the various agreements mentioned above. Rather, it seems a means of appearing more active in IP enforcement and increasing credibility, and thus negotiating power, in the period leading up to the 1994 General Agreement on Tariffs and Trade wherein the US was trying to push through a trade-centric IP agreement that would become known as TRIPS.

(2) Article 6bis, http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726
(3) http://cool.conservation-us.org/jaic/articles/jaic36-02-006_3.html
(4)Article 6bis, 7, http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726
(5) http://cool.conservation-us.org/jaic/articles/jaic36-02-006_3.html