37 Pages Posted: 9 Nov 2009
In recent years, it has become clear that the TRIPS regime is in trouble. Although lawmaking in the World Trade Organization (WTO) has essentially stalled, there is a continuing need to recalibrate the rules applicable to knowledge production. In theory, the problems facing WTO members could be resolved through new lawmaking within that institution. For a variety of reasons, however, this has not materialized. The WTO’s adjudicatory system has compensated somewhat for the lack of activity in the Ministerial Conference and the General Council. But for a number of reasons, it is not a substitute for a well-functioning “legislative body.” Indeed, some of the activity in this field has shifted back from the WTO to the World Intellectual Property Organisation (WIPO). Although this regulatory competition might currently be leading to a suboptimal global regime, the move to WIPO is intriguing. It suggests an institutional design that could make the international intellectual property system more responsive to changing needs. Indeed, the TRIPS Agreement contemplates a formal tie between the WTO and WIPO. Unfortunately, however, the nature of the lawmaking relationship between these two organizations has yet to be fully elucidated. TRIPS incorporates provisions of two WIPO instruments (the Paris and Berne Conventions), and references others. Still, it is not evident whether (or how) the WTO should be taking account of WIPO’s view of these commitments. Nor is it clear how (or when) new developments within these conventions should affect WTO obligations. This essay takes up the institutional design question of how to create an intellectual property system responsive to changing circumstances by examining how the WTO can best make use of WIPO’s experience and expertise in intellectual property matters. After considering the intellectual property cases decided to date by the WTO dispute settlement body and determining the ways in which they have relied on the text and negotiating histories of, and other materials relevant to, WIPO conventions to elucidate TRIPS obligations, we suggest some revisions to interpretive approaches pursued thus far by dispute settlement panels. We point out methodologies that would leaven and cabin the trade perspective, and thus allow the WTO to capitalize on WIPO’s experience and on WIPO developments that cope with the dynamic nature of intellectual property and the changing landscape of knowledge production. Our analysis is also meant for broader application, for developing a design that permits productive input from all the international institutions that have interests touching on intellectual property norm development.
Keywords: WTO, WIPO, TRIPS, Dispute Settlement
JEL Classification: K11, K33
Suggested Citation: Suggested Citation
Dinwoodie, Graeme B. and Dreyfuss, Rochelle Cooper, Designing a Global Intellectual Property System Responsive to Change: The WTO, WIPO and Beyond. Houston Law Review, Forthcoming; Oxford Legal Studies Research Paper No. 50/2009; NYU Law and Economics Research Paper No. 09-48; NYU School of Law, Public Law Research Paper No. 09-63. Available at SSRN: https://ssrn.com/abstract=1502262