The Case for ‘Regime Shifting’

by jakecarberry

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)
dp_147.en.pdf p.5
(3) Globalisation of the Mass Media,, p.115