The Harmonization Myth in International Intellectual Property Law
50 Pages Posted: 29 Oct 2020
Date Written: September 26, 2020
There is a dominant narrative in international intellectual property (“IP”) law of ever-increasing harmonization. This narrative has been deployed in ways descriptive, prescriptive, and instrumental: approximating the historical trend, providing justification, and establishing the path forward. Appeals to harmonization are attractive. They evoke a worldwide partnership and shared sacrifice to meet the goals of innovation and access to technology through certainty, efficiency, and increased competition through lowered trade barriers. Countries with strong IP protections consistently and successfully tout the importance of certainty and lower trade barriers when seeking new and stronger protections from countries with lower levels of protection. Yet the harmonization narrative is a myth. Harmonization can account for only some attributes of international IP law development, and even those are often better explained by a maximalist account of IP protection.
Maximization of IP rights better explains much of the substance of international IP law development, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), which sets floors — but not ceilings — for IP protections. Maximization is particularly evident in the forum-shifting behavior that has resulted in a proliferation of IP commitments in investment, bilateral, and regional trade treaties in the years since the TRIPS Agreement went into effect. These commitments often increase IP protection in signatory countries in ways that bring them out of harmony with the majority of the world. As a result, prior commitments to harmonization are discarded for maximization.
Through the lens of duration, this Article describes the harmonization narrative and its strength leading up to the TRIPS Agreement before showing the explanatory superiority of a maximization narrative, even in the provisions of TRIPS. Next, the Article shows how maximization of IP has driven many of the post-TRIPS treaties and agreements at the expense of harmonization. Recognizing maximization instead of harmonization as the chief explanatory story has a number of implications for the future of international IP law. It challenges the normative presumption that all countries should have the same level of IP protection and weakens arguments that countries ought to sacrifice their own national agendas in order to bring their IP protection into harmony with other countries. Ultimately, correctly identifying the trajectory of international IP law allows scholars and stakeholders to address complicated problems with realistic expectations, rather than attractive — but flawed — rhetoric.
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