Cat and Mouse: Industries', States' and NGOs' Forum - Shifting in the Battle Over Intellectual Property Enforcement

31 Pages Posted: 5 Sep 2009

Date Written: September 1, 2009

Abstract

Abstract

Since the early 1980s advocates seeking to ratchet up levels of intellectual property (IP) protection have shifted forums both vertically and horizontally in order to achieve their goals. They have shifted vertically, from multilateral to regional to bilateral levels, and they have shifted horizontally across diverse international organizations. Those who seek to ration access to IP are engaged in an elaborate cat and mouse game with those who seek to expand access. As soon as one venue becomes less responsive to a high protectionist agenda, IP protectionists shift to another in search of a more hospitable venue.

Forum-shifting can refer to several distinct dynamics, all of which are designed to yield preferred results by changing the game. Parties might move an agenda from one forum to another, exit a forum altogether (e.g. the US exiting UNESCO in the 1980s), or pursue agendas simultaneously in multiple forums. According to Peter Drahos, “forum shifting means that some negotiations are never really over.” Strong states like the U.S. shift forums to optimize their power and advantages and minimize opposition. The IP enforcement agenda is just the latest in a series of strategic forum shifts. Yet “weaker” parties, such as developing countries and public advocacy non-governmental organizations (NGOs), also deploy forum-shifting strategies in their efforts to reshape the rules.

Laurence Helfer’s most recent analysis follows the process between TRIPs and the access to medicines campaign . He traces two key cycles: first the adoption of TRIPs; followed by the access-to-medicines campaign’s desired amendments to TRIPs in WTO; and concludes that the latter was a victory for the “weak” . By contrast Daniel Drezner traces three cycles: the adoption of TRIPs; the Doha Declaration; and the amendment to TRIPs for countries that have no domestic generic drug manufacturing capability. He concludes that this last cycle demonstrates that the “strong” states with large markets ultimately prevail. This paper does not seek to “prove” either of these two analysts “right” or “wrong”, but rather to demonstrate the importance of tracking regime complexity and highlighting both policy and analytic implications of such analysis. This paper extends these cycles forward into time and traces the process of contestation within and across forums.

Suggested Citation

Sell, Susan K., Cat and Mouse: Industries', States' and NGOs' Forum - Shifting in the Battle Over Intellectual Property Enforcement (September 1, 2009). Available at SSRN: https://ssrn.com/abstract=1466156 or http://dx.doi.org/10.2139/ssrn.1466156

Susan K. Sell (Contact Author)

George Washington University ( email )

Washington, DC 20052
United States

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