IP Enforcement Beyond Exclusive Rights

Abstract

The notion to strengthen regimes for the enforcement of intellectual property currently takes centre stage in various international, regional and national forums. In general, developed countries are demanding stronger enforcement, while developing countries take a defensive stand aiming to prevent further obligations beyond those found in part III of the TRIPS Agreement. Against this back-ground, enforcement of intellectual property is generally connoted with the enforcement of right holder’s exclusive entitlements - thus neglecting other elements of the intellectual property system (such as exceptions and limitations to exclusive rights) and their ‘enforcement’. This prevents a holistic view on the issue of IP enforcement where all stakeholders and their role and interests in the IP system are examined. In this chapter, I plan to identify the relevant actors in IP enforcement on the basis of such a holistic approach to IP enforcement. This allows a more comprehensive perspective on the issue of enforcement where developing countries have not only defensive interests in preventing further reductions in the policy space available under TRIPS. They also have significant offensive interests in giving effect to those elements of the intellectual property system which suit their domestic innovation and technology policies and recognise other public interests. I conclude that the current enforcement debate not only suffers from an unproportionate bias towards the interests of right holders, but at the same time marginalises the offensive interests of developing countries. They are therefore well advised to assess the interests of their domestic stakeholders and establish a comprehensive IP strategy which focuses on enforcing these interests.

Keywords: Intellectual property, IP enforcement, development countries