INTERNATIONAL / INTELLECTUAL PROPERTY / GLOBAL LAW-MAKING

European Intellectual Property Review, Vol 22 Issue 7, July 2000

Why Lawmaking for Global Intellectual Property is Unbalanced

Peter M Gerhart

While commending the efforts made toward a unified global system of intellectual property protection, the author of this article considers that "the machinery of law-making in international intellectual property is not designed to give us a global system that comes anywhere near a socially optimum system". The adoption of the TRIPS Agreement and the work of the WTO and WIPO are valuable; but intellectual property laws still operate on a national basis. This means that individual states can and do adjust the balance between producers and consumers; for example, by strengthening or weakening the standards for obtaining protection and by widening or narrowing the definition of infringement. The author believes that a global system is likely to lead to over-protection and fears that "global intellectual property rights will continually expand without any showing that the increased value of the rights serves a socially useful function". Producer interests are more likely to capture the apparatus forming a country’s policy towards intellectual property. Moreover, at the international level, law-making is bureaucratic, not democratic; and most agreements result not from voting but from negotiation. It follows that bargaining takes place across a variety of legal and economic issues; and the protection of intellectual property may form part of a trade-off against rights in agriculture or textiles. In these circumstances there is little likelihood of a genuine balance being achieved in the distribution of rights generally and intellectual property rights in particular. Corporate consumers need to form coalitions to shape global intellectual property policy: the best antidote for an excessive increase in intellectual property protection lies in the hands of insurance companies which pay for patented drugs, media companies which pay for program content and competitors who need access to knowledge to compete. [20026]