22 Pages Posted: 6 Jul 2017 Last revised: 10 Aug 2017
Date Written: June 30, 2017
In theory, exit from Brexit will free the United Kingdom from the constraints and burdens of EU membership. It will transfer sovereignty back to the people from the technocratic rule of Brussels; replace the jurisprudence of the Court of Justice with the adjudicative power of national courts; and allow the UK to tailor its market regulation in the particular exigencies of the UK economy. Whether, as a general matter, the restoration of a classic Westphalian state enhances value either nationally or globally is an issue we leave to others to debate.
We ask a different question: we explore how well the rhetoric of Brexit comports with the reality and the institutional economics of nation-state lawmaking in an era of global trade and digital communication technologies. We use intellectual property law as a concrete example. We think it a good place to consider, with potentially broad significance. Copyrights are deeply intertwined with culture and education; patents have significant implications for health and safety; and trademark law sets the rules of the road for the marketplace in products and services. Since the critique of one-size-fits-all intellectual property regimes is well-known and widely accepted, some might think that this were an area where the United Kingdom would quickly move to restore self-rule.
And yet global intellectual property rights are intimately associated with the incentive system of the Knowledge Economy writ large. Moreover, intellectual property mediates the infrastructure of the modern-global-business environment. We conclude that, not only are some of the supposed sovereignty gains of Brexit unlikely to be realized by the United Kingdom (because of the web of international, regional and bilateral obligations that exist in the field) but that many of the efficiency gains of harmonization that flowed from EU membership have been vitally important to the climate for innovation in the United Kingdom. If wholly jettisoned, they would adversely affect that climate in the EU. Thus, we explore how such gains might be reconstructed in a post-Brexit environment.
We foresee some room for national experimentation. But we also predict an increased importance of transnational private ordering as means of efficiency gains, the rise of “technocratic” harmonisation, and the development of different forms of political convergence. While our study is limited to Intellectual Property, we believe that many of the features that we discuss are true of other areas of law as well.
Keywords: Brexit, harmonisation, private ordering, sovereignty, intellectual property, UPC, Unitary patent, EUTM, Great Repeal Bill
JEL Classification: K11, K19, K33
Suggested Citation: Suggested Citation
Dinwoodie, Graeme B. and Dreyfuss, Rochelle Cooper, Brexit and IP: The Great Unraveling? (June 30, 2017). Cardozo Law Review, Forthcoming; NYU School of Law, Public Law Research Paper No. 17-26; NYU Law and Economics Research Paper No. 17-24; Oxford Legal Studies Research Paper No. 46/2017. Available at SSRN: https://ssrn.com/abstract=2996918