Slouching Towards Development in International Intellectual Property

Abstract

An understanding of intellectual property's classic innovation mandate as only one of many cross-cutting development goals should be well-accepted by now within international intellectual property law and policy, given the pervasiveness of development rhetoric at the WTO, WIPO and other regional and bilateral fora. Yet development "walk" lags behind development "talk" on both international and domestic levels. This article focuses on how intellectual property can promote development, not only through innovation, but also by the promotion of broad-based human development implicitly underpinning global knowledge economies. First, we consider the rapidly evolving relationship of development and trade to intellectual property, and conclude that current approaches to all three of these areas emphasize balanced rules, which means assessments of costs and benefits, preservation of flexibility, and transparency of development impact. To increase this pro-development balance within the current international intellectual property regime, each of us offers a specific proposal. Barbosa proposes three principles of treaty interpretation to maximize the potential of TRIPS articles 7 and 8 as balancing mechanisms within WTO jurisprudence. These include the principles of integration, evolutive interpretation and vectorial interpretation all of which are consistent with a teleological approach to TRIPS as an instrument of development. Chon posits "development" as a key legal term of art throughout the international intellectual property regime via a substantive equality principle; this principle is applied here to the current Development Agenda within WIPO, to link intellectual property and innovation to human development priorities such as education. Finally, Moncayo von Hase advocates for the recognition of emerging rules of customary international law, such as the emerging human right to health, in the context of interpreting related intellectual property obligations; in addition, he argues in favor of maximizing international law principles of non-derogation and freedom of implementation, to maintain national policy space and flexibility for social welfare objectives in the context of post-TRIPS bilateral and regional treaties. By its very structure, this article attempts to demonstrate the thesis that a pro-development balancing "walk" must occur simultaneously within and among all aspects of the international intellectual property regime, the complexity of which is manifest in multiple fora and jurisdictions, globally and domestically.

Keywords: Development, Development Agenda, FTAs, Globalization, Human Rights, Intellectual Property, TRIPS, WIPO, WTO

JEL Classification: F01,F02, F10,I18, K33, O19, O20, O34