jake carberry

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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

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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.

(1)http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html
(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

The Berne ‘three-step test’: A Need for Clarification?

Within the majority of states there is legislation which allows for exemptions to and limitations of the scope of copyright. This ensures sufficient means to reproduce protected works, beyond the sole control of the right holder, when it is deemed necessary: in exceptional cases, and in a way that is congruent with the public interest. States have implemented these exemptions or limitations in various ways and, naturally, disparities in levels of regulatory standards have arisen and been exploited. (1) There is, however, an international test; a ‘three-step test’ with which all domestic copyright exemptions must comply. First established in Article 9.2 of the Berne Convention for the Protection of Literary and Artistic Works in 1886, it set the legal parameters for reproducing a work at international level. As outlined in Article 9.2, “It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.”(2) While the main premise behind the ‘three-step test’ has remained largely static, over the years, and as the test has subsequently been incorporated into numerous other treaties such as TRIPS (Article 13), and the WIPO Copyright Treaty (Article 10), the language of the test has evolved a great deal. In regards to Article 13 of TRIPS, unlike Article 9.2 of the Berne Convention which only applied to reproduction rights, the language used allows the test to cover copyright more broadly. (3) Thus, as the test has evolved, and as we enter a new digital age, clarification of the ‘three-step test’ and the limitations of copyright seems crucial.

This opinion is clearly supported by WIPO who in the last session of the Standing Committee on Copyright and Related Rights, carried out substantial work on defining copyright definitions and exceptions for various user groups. (4) Librarians seeking to preserve books online or the visually impaired who wish for better access to works designed for their use are two examples of user groups that the current test cannot adequately cater for. Moreover, there is also growing critique of the way in which the test is read and interpreted. This, in turn, has highlighted the confusion that currently exists at the international level and the correct definitions of particular words used in the test, such as “normal” and “reasonable”, have been fiercely debated. Developing countries are exempt from the test under the Berne appendix on Special Provisions for Developing Countries and yet, because of the complex nature of compulsory licenses and high transaction costs, they are rarely used. These countries still do not have sufficient access to knowledge. (5)

To conclude, as the digital horizons wherein copyright protection is still largely experimental broaden, it has become of critical importance that we devote as much time and effort into exploring the exemptions and limitations of the scope of copyright, as we do to improving copyright protection.

(1) http://www.ip-watch.org/2011/12/21/ip-experts-focus-on-3-step-test-in-copyright-debate-way-forward/
(2) Article 2, http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726
(3) Article 13, http://www.wto.org/english/docs_e/legal_e/27-trips_04_e.htm
(4) http://www.ip-watch.org/2011/12/05/wipo-sees-progress-on-broadcaster-rights-library-exceptions-treaty-for-blind-readers-slips/
(5) http://www.ip-watch.org/2011/12/21/ip-experts-focus-on-3-step-test-in-copyright-debate-way-forward/

The Concept of ‘Balance’ in the International Intellectual Property System

Within the field of intellectual property law, one issue that very frequently dichotomises opinion is the, frequently cited yet somewhat vague, concept of ‘balance’. This is no small part due to the fact that in terms of the international intellectual property system, this concept of maintaining a ‘balance’ is loosely defined and multi-layered in nature: it is applicable in almost all regards.(1) For example, scholars and policy-makers often refer to the balancing of the IP system, but what two opposing forces is the system balancing? Public good vs Private interests? North vs South? Over-regulation vs Laissez-faire? And to whose detriment is an imbalance of the system? This blog will explore the concept of balance in terms of the IP system and, in doing so, will seek to highlight the two most significant opposing forces that the system should be concerned with balancing.

The Link between Economics and Law in Intellectual Property

Firstly, it is important to consider the inescapable link between economics and law in any discussion of intellectual property. Intellectual property is primarily concerned with the promotion and protection of incentives and thus, in motivating producers to produce.(2) This is one of the founding blocks of modern economic society, based upon the market mechanism. As such, it is economic theory that underpins the law; there to ensure the proper protection of IP rights and thus, to maintain an efficient allocation of resources at the macro-economic level.

Economics, Law and Development

‘Balance’ in the international IP system should thus take account of both economics and law. Given that the WTO is based around trade and the theory that liberalized trade will benefit all members, it seems fair to suggest that development is an important facet of the WTO. Following a regime shift, the WTO with TRIPS has also become centrally important in IP discussion. It follows then, when one refers to ‘balance’ in the IP system it should be between the protection of IP rights, (and thus, incentives), and the economic development of developed and developing countries alike. One of the key economic arguments that the WTO bases a great deal of its trade liberalization policies on is that with more trade, developing countries will grow at a faster rate because of the diffusion of technology and knowledge from the developed countries, who finance the research and development. Inequality is thus said to be positively affected. This benefit, however, is greatly limited by intellectual property, and specifically, stringent IP protection that creates issues such as the Access to Medicine and Access to Knowledge controversies.(3) The two economic theories are in direct conflict with one another.

To conclude, given that the WTO is currently the key forum for both intellectual property and development it seems clear that when referring to ‘balance’ in the IP system, the emphasis should be between these two opposing forces – protecting intellectual property and aiding the economic advancement of developing countries. The potential ‘regime shift’ away from the WTO towards plurilateral agreements such as ACTA detracts from such an argument to an extent however these agreements are still based on trade. While the WTO remains centrally important, the conflict between the push for more free trade and intellectual property protection is there for all to see.

(1) http://www.wipo.int/freepublications/en/patents/491/wipo_pub_491.pdf
(2) Joseph E Stiglitz, Claude Henry, ‘Intellectual Property, Dissemination of Innovation and Sustainable Development’, Global Policy, 1 (3) October, (John Wiley & Sons, 2010)
(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

The Emir Reforms: An Unrealistic Deadline?

Following the recent publishing of the final text of the European Markets Infrastructure Regulation (Emir), there is growing concern amongst European market participants that the year-end deadline for implementation is too soon. The reforms are effectively the European equivalent of several parts of the US Dodd-Frank Act and a key element to the European Union’s post-financial crisis safeguarding strategy. The new regulation is primarily concerned with reducing risk in off-exchange derivatives markets. To do this, Emir will require a greater percentage of over-the-counter derivatives be traded electronically, processed through clearing houses, and reported to trade repositories. Furthermore, over-the-counter derivatives that have not been cleared will be subject to risk management obligations. (1)

While the regulation itself is widely accepted, the proposed deadline has led many market participants, including pension funds, lawyers and trade industry bodies, to suggest that the regulation may be undermined if implementation is rushed. This trepidation seems valid, given the vast amount of work still to be done by European regulators in order to meet the year-end deadline for implementation. The delayed legislation means that the European regulator, the European Securities and Markets Authority (Esma), has only until late September to reflect upon the regulation, and provide its technical standards, that is, to outline exactly what will be required of the industry to comply with Emir. This would leave just three months to implement new rules. It is hard, then, to disagree with Lawyer Jeremy Jennings-Mares’ suggestion that “this cannot possibly offer enough time for the proper development of the necessary rule making.”(2)

In summary, while the reforms outlined in Emir are very necessary, the rushed implementation of these new rules is not. Instead, as much time as is required should be taken to ensure that the excessive risk levels in derivatives markets are addressed effectively. Given that Esma has frequently bemoaned a lack of resources it seems irresponsible to apply such crippling time pressures upon an authority with such an important role to play.

(1)http://www.ft.com/cms/s/0/7e9941a0-736e-11e1-94ba-00144feab49a.html#axzz1prsVPCf4
(2)ibid.

The Monetary Policy Committee’s growth forecast for 2012: Misplaced Optimism?

As to be expected following some positive months in the United Kingdom, the latest growth forecasts from the Monetary Policy Committee appear to be moving in the right direction, that is, upwards. Data collected since the beginning of 2012 indicates better-than expected economic performance in the UK and the Bank of England’s economists, ever the optimists, have regarded these signs of recovery as sufficient grounds to increase the 2012 growth estimate to 1.95%, from 1.21% in November.

The European Commission, however, has today published growth estimates for the EU and Euro area, and its forecast for the UK, last recorded in November, remains at 0.6%. As such, the disparity between the two forecasts has widened significantly, with the Commission’s forecast far more in line with the UK Office for Budget Responsibility’s forecast of 0.7%. While the Commission did state that there has been significant improvement in key economic indicators and that UK consumption would likely be boosted by the falling inflation rate, its outlook on growth and other variables such as unemployment remained much the same as in November. This is largely due to its expectation that British exports will be hit by a Euro-wide “mild recession”. While the Commission referred to it as “mild”, the severity of the purportedly-forthcoming recession is evident, given that 24 of the EU27 saw a reduction in growth forecasts while many Euro area countries such as Italy and Spain may also see a fall in output.

Given that private-sector and IMF forecasts for UK growth remain at 0.4% and 0.6% respectively, it seems the Bank of England is excessively optimistic – understandable given the fluctuating confidence in the economy. Only time will tell which forecast will prove more accurate. As with all economic models, measures and forecasts, the only certainty is uncertainty.

European Trademark Law: Should National Courts Have a Greater Role?

The harmonising of trademark law is a long-standing issue that has been fiercely debated by scholars and policy-makers alike. For advocates of greater harmonisation, on a global scale, EU trademark law is one of the most frequently cited success stories. European trademark law is by no means perfect though, and questions remain about the European Court of Justice (ECJ) and the pivotal role it has adopted in trade mark law dispute resolution. This entry will explore these questions and suggest that ultimately, the strain placed on the ECJ could be alleviated by national courts.

While the Trade Mark Directive and the Community Trade Mark provided the foundations, it is the preliminary ruling procedure which ensures a “unified interpretation” of harmonised trademark laws throughout the European Union.(1) Given the prominence of this procedure, it is perhaps unsurprising that the ECJ has found itself heavily burdened by its critical role in the development of harmonised European trademark law. In this regard, due to the complex and ever-changing nature of trademark law, the efficiency and responsiveness of European trademark system could be increased by allowing and encouraging greater participation of national courts in resolving trademark issues, rather than immediately involving the ECJ.

While this may at first seem contrary to the objectives and paradigm underpinning trademark harmonisation, there are several advantages that could be realised if national courts in Europe were given greater opportunity to consider resolutions in trademark issues. Firstly, it is important to note that trademark disputes are very fact-specific and, as such, national courts seem far better placed than the somewhat over-reached ECJ to examine the particular facts of a case. As national courts reflected upon more trademark disputes over time, it is likely that legal norms and principles would develop from those disputes with similar facts, ultimately leading to more sophisticated, specialised trademark law. (2)

The most significant advantage, however, which again stems from the possibility of specialisation, is based on the fact that in European national courts, trademark disputes are resolved by specialist judges with vast experience. This, I would argue, is a distinct advantage over the ECJ, wherein trademark disputes are resolved by lawyers with little to no trademark experience or expertise. Moreover, the value of past decisions and rulings within the broad field of trademark law should not be understated; when faced with complex new issues in trademark law, the ECJ does not possess such tradition whereas national courts can draw upon past experience. (3)

To conclude, national courts can be seen to possess a number of distinct advantages over the ECJ. That is not to question the importance of the preliminary ruling procedure but rather to suggest that, if national courts were given greater influence within the development of trademark law, the system would benefit from the expertise and specialisation that exists at the national level. In this regard then, the benefits that would arise from such a relationship would be akin to that of the Supreme Court and the lower courts in the United States. (4)

(1) Graeme B Dinwoodie, ‘Trade mark harmonisation – national courts and the European Court of Justice’, International Review of Intellectual Property and Competition Law, (2010)
(2) ibid.
(3) Michael Handler, ‘The distinctive problem of European trade mark law’, European Intellectual Property Review, (2005)
(4) Dinwoodie, (2010)

UDRP: How useful is it?

The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a contract-based framework designed to facilitate the resolution of internet domain-name disputes. Established and policed by the Internet Corporation for Assigned Names and Numbers (ICANN), it is a non-national system which, because of the nature of domain-names, has proven very important in the resolution of trademark disputes.(1) In order to register a domain-name in any of the domains that follow the UDRP, the registrar must first sign a contract: an agreement that the domain-name “…will not infringe upon or otherwise violate the rights of any third party” and to participate in an arbitration-like proceeding if a claim is brought against the individual by any third party.(2) The UDRP currently applies to the majority of key top-level domains including .com, .org and .net, as well as many country code domains. Thus, whilst it is ‘soft law’, the UDRP can be seen to have real global reach. It begs the question then, in an age wherein intellectual property protection has struggled to come to terms with the emergence of digital media unconfined by territory or borders, is this form of ‘unconventional’ lawmaking the answer?

As it currently stands, however, the answer to this seems to be that it is probably not. The UDRP still has numerous flaws, for example; it is weighted heavily in favour of trademark owners who, because of the resources at their disposal, can raise disputes at will, and if the complaint fails, raise another. Furthermore, the importance of any judgment in UDRP proceedings is limited by the fact that in many jurisdictions the decision of the UDRP administrative panel can ultimately be overturned by the national courts. (3) In the US this falls under the Anticybersquatting Consumer Protection Act (ACPA).(4) Indeed, there have been a number of instances wherein US courts have heard appeals against UDRP decisions. Moreover, since the UDRP was introduced in 1999, the purchasing of domain-names has continued to evolve and it is now common for individuals or companies to buy large portfolios of domain-names. In this regard then, these individuals can claim they were unaware of any trademark infringement when purchasing these portfolios and as such, the UDRP can be challenged.

This is not to say the UDRP is without merit: it is a policy with true international scope, and one that has proven successful, most notably in high profile cases such as that of Madonna Ciccone, p/k/a Madonna v. Dan Parisi and “Madonna.com”. (5) It represents a policy born of necessity and has proven a key tool in counteracting the emerging IP threat of cybersquatting (the registering of known trademarks as domain-names with the sole intent of later selling the domain-name to the trademark owner for a profit).

To conclude, while the UDRP can be seen as successful, cost effective and wide-reaching in many ways, ultimately, because of its numerous limitations – most significantly that it can be overturned by national courts – the importance of this ‘soft law’ is debatable. As commentators such as Yu suggest, however, a ‘hardening’ of this law could prove more effective.(6)

(1) Sheldon W Halpern, Craig Allen Nard, Kenneth L Port, Fundamentals of US Intellectual Property Law. Copyright, Patent, Trademark, (2010) p.377
(2)http://www.icann.org/en/dndr/udrp/policy.htm
(3) Paragraph 4(k) http://www.icann.org/en/dndr/udrp/policy.htm
(4) http://cybersquatting.com/index.php?page=legal-actions
(5)http://www.wipo.int/amc/en/domains/decisions/html/2000/d2000-0847.html
(6) Peter K Yu, Intellectual Property and Information Wealth: issues and practices in the digital age, (2007), p.5

The Bank of England, Quantitative Easing and the Recession: Delaying the Inevitable?

Date Written: February 9, 2012

The Bank of England has today announced, as many had expected, a significant increase in the level of quantitative easing (QE). As such, the committee judged that in order to meet the 2% inflation target in the medium term and to counteract the current economic slack, it is increasing its programme of “asset purchases, financed by the issuance of central bank reserves, by £50 billion to a total of £325 billion.” (1) It is a move that takes overall Bank of England holdings to over one third of the total stock of gilts in issue. The Bank has also announced a key adjustment to its policy regarding the purchasing of conventional gilts, namely that “the maturity sectors will be defined as 3-7 years, 7-15 years and over 15 years” rather than 3-10, 10-25 and 25+ as they had been previously. (2) Interestingly then, the Bank is shifting the balance of its purchases towards shorter-term bonds.

The Fed, on the other hand, has proven far less decisive this week with regards to further QE and the proposed $9 billion takeover of ING Direct by Capital One, with a decision on the latter being postponed to this coming Monday. In terms of the former, The Fed must decide whether to “increase its holdings of long dated securities and if so whether to focus once again on government debt, or to re-open its purchases of mortgages.” (3)

The question remains then, is QE still working? Central bankers remain positive with the vast majority of them clinging to the belief that “additional asset purchases can further reduce long term bond yields at a time of zero short term interest rates, but also that this can increase real GDP growth, compared with what otherwise would have occurred.” (4) I, however, am not so sure; perhaps we should place less emphasis on QE, a somewhat blunt and ineffectual tool, and consider the Keynesian approach, that is, boosting demand through fiscal stimulus. As history has shown, Keynesian theory is recession economics and given that we are in real danger of a double-dip recession I suggest we place greater faith in Keynes.

(1)http://ftalphaville.ft.com/blog/2012/02/09/875301/bank-of-england-ups-qe-by-50bn/
(2)ibid.
(3)http://blogs.ft.com/money-supply/2012/02/08/qe-financial-repression-and-the-uk-recovery/?Authorised=false#axzz1lvdj71JR
(4)ibid.

Who Were the Actors Involved Behind the Inter-regime Shift and What Interests Were They Pursuing?

Given the way in which global society is currently structured, it is in the interests of countries to use inter-regime shifts as a means of enhancing their negotiating power, thus maximising gains from the system. This is most clearly illustrated by the inter-regime shift that occurred in the 1980s, wherein the developed countries sought to ensure that the World Trade Organisation (WTO) became the forum of choice for intellectual property, displacing the World Intellectual Property Organisation (WIPO).(1) The developed countries, and the United States in particular, had become increasingly frustrated with what they perceived as slow progress within the area of intellectual property protection. This was largely due to the dominance of developing countries within WIPO, the limiting nature of the one-country-one-vote system and the fact that there was no scope for cross-sector or linkage bargaining, that is, the linking of IP rights to other trade-related issues such as agricultural subsidies or quotas.(2) In essence, the developed countries sought to migrate the issue of IP protection to a negotiating forum wherein they could use the political and economic resources at their disposal to coerce developing countries into acting in a manner congruent with their economic self-interest.(3)

While it is certainly true that the developed countries were instrumental in implementing the inter-regime shift, such a state-centric view seems naïve given the relative complexity of the intellectual property system. On adopting a micro-level of analysis, it can be seen that there were many actors who found their input limited given the organisational structure of WIPO, and thus, these actors, namely, private corporations and non-governmental organisations alike, would certainly have supported the inter-regime shift. Private corporations, for example, are far more influential now than previously possible under WIPO, and through aggressive lobbying, were arguably the “…main proponents behind the push for stronger international intellectual property protection in the TRIPs Agreement.”(4)

There were thus a number of actors behind the inter-regime shift from WIPO to WTO and the interests they were pursuing, specifically those of developed countries and private corporations, have proven very similar; simply put, to protect incentives. The developed countries – chiefly the United States – performed the inter-regime shift not only to ensure that stronger intellectual property rights were implemented but also to enable themselves to exert a greater degree of control over the system. The structure of the WTO allows the developed countries to use their resources to steer trade-related negotiations, in this case intellectual property rights, in line with their own economic interests. This is especially evident upon reflection of cross-sector bargaining in which developing countries are left little real choice but to adopt standards of intellectual property that may be of detriment to their economic development and the dissemination of knowledge.(5) Moreover, given the inter-regime shift enables developed countries, such as the US, to exert greater influence in the WTO then perhaps the interest it served was to allow developed countries to force through IP policy that they were unable to domestically such as the United States’ digital agenda under Clinton. (6)

(1)Peter K Yu, Currents and Crosscurrents in the International Intellectual Property Regime, (2004)
(2)Margaret Chon, ‘Intellectual Property and the Development Divide’, Cardozo Law Review, 27 (6) Spring, (2007) p.2832
(3)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
(4)Susan K Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (2003)
(5)Chon, (2007)
(6)Yu, (2004)