TOWARDS A DEVELOPMENT-ORIENTED INTERNATIONAL INTELLECTUAL PROPERTY
BALANCE
OUTLINE 7/30/06
(for copies of the full draft paper, please contact Margaret Chon at mchon@seattleu.edu)
Denis Borges Barbosa, Margaret Chon and Andrés Moncayo von Hase
DRAFT: Please do not cite or quote without permission, but do feel free to give
constructive comments and feedback.
Draft prepared for the Berkeley IPSC 2006 Conference (August 2006);
Versions of the final paper to be published in the Michigan State Law Review symposium
issue on the International Intellectual Property Regime Complex (forthcoming 2007) or as a
chapter in Intellectual Property, Trade and Development (Daniel Gervais, ed., forthcoming
2007)—precise allocation to be determined.
I. INTRODUCTION
This article suggests several ways in which international intellectual property
form can follow function (rhetoric) of development pervading international institutions.1



Exploiting Articles 7 & 8 within WTO jurisprudence (Barbosa; noted by
Dinwoodie (4) and Chon as being underdeveloped)
Positing a new substantive principle of equality within both WTO and WIPO
(and other agencies and jurisdictions that address IP): to answer Broude’s
question “what is development” as a key operative term within international
development law, specifically the so-called international intellectual property
regime complex (IIPRC)? (Chon)
Creating policy space and flexibility within national laws through the use of
public international law doctrines, combined with TRIPS Article 1(1) freedom of
implementation clause (Moncayo)
Situates these prescriptions within a larger framework, including:




the evolving nature and purpose of the WTO
the desirability of linking intellectual property to trade, public health and other
aspects of development
the consequences of understanding international intellectual property law and
policy-making as a regime complex
the growing debate over whether there is “balance” in international intellectual
property and/or what kind of balance we are seeking
1 Tomer Broude, (“Form follows function, and function follows purpose, but in the WTO the
ostensible shift in telos from trade to development is incomplete and risks superficiality, is not supported by
a corresponding change in its actual workings.”)
Both IP and non-IP specialists have concluded that more affirmative action is required to
address the disjuncture between development goals and IP standards.
II. THE GLOBAL FRAMEWORK FOR ASSESSING BALANCE IN INTELLECTUAL PROPERTY
Constitutionalizing the WTO – a brief overview of the debate in trade scholarship over the
WTO’s world governance role
A.



constitutionalizing is good/necessary/inevitable2
constititionalizing is irrelevant/bad3
A modest, pragmatic definition adopted here: Constitutionalizing the WTO means
“an attitude and framework capable of reasonably balancing and weighing different,
equally legitimate and democratically defined basic values and policy goals of a
polity dedicated to promote liberty and welfare in a broad sense.”4
o
o
o
B.
Our perspective is driven by the obvious need to incorporate the
development dimension into international intellectual property legal
frameworks, both at the global and domestic levels
Opening sentence based on observation by Broude: while the rhetoric of
development (according to the Doha Development Round and Millennium
Development Goals) has pervaded the international IP institutions, their
functional design has not changed to accommodate development concerns in
meaningful ways
Regardless of the academic debate, it’s no longer possible to
compartmentalize trade and/or IP from social concerns5
IP Linkages: to trade, to public health, to other aspects of development?

Debate about whether TRIPS/IP belongs in Trade
o Deep integration of standards – first example of non-trade linkages within the
WTO – debated within the trade literature
o Good or bad for development?
 good – can lead the way to other social linkages6
 appropriate – IP is trade-related7
 bad – IP is not trade-related; should remove8
Dunoff, Guzman
McGinnis & Movsesian
4 Thomas Cottier, Limits to International Trade: The Constitutional Challenge, 94 Am. Soc. Intl’ L.
Proc. 220, 221 (2000)
5 Broude; see previous bibliography for Davis article (Rittich, etc.)
2
3
6
7
Drahos; Musungu
McGinnis & Movsesian
2

Consequences?
o Dangers: non-trade issues being subverted to trade ends9
o Opportunities: Within WTO jurisprudence, looking outside WTO law for
sources of law for guidance on social questions, such as sustainable
development in the context of environmental issues. 10
WTO/WIPO as a regime complex – cannot just analyze the WTO by itself
C.





D.
Definition of regime complex11
WIPO-WTO – many UN agencies implicated in IP, innovation and development,
although sidelined by WIPO12
WIPO-WTO institutional division of labor, roles and competence post TRIPS – still
in flux13
Remember national law-making and private ordering – proliferation of lawmaking
sites14
Development agenda forces a re-examination of institutional roles15
International IP Balance: does it or doesn’t it exist?

Yes: may exist normatively (we all agree that it’s still important) but not as an
empirical matter
o international IP balance is reflected in national law-making in Canada;
TRIPS preamble16
o international IP balance is invoked in current legal instruments17
 WCT preamble
 Three types of balance in international IP
 Not present historically in international IP

Does not exist empirically: what to do about it?
o incentive model of development is linked to a powerful property rights
rhetoric18
Baghwati; Stigliz
Pager; Yu
10 Marceau; Yu
11 Raustiala
12 Musungu
13 Watal
14 Dinwoodie 1; Gervais
15 Musungu
16 Gervais
17 Dinwoodie
8
9
3
o
o
o
IP as human rights; can also be (problematically) linked to property rights19
language of balance within current international IP instruments, but may
still skeptical that balance is proper20
The special problem of the WTO: Trade and Development
 Generally (non-IP)21
 Insistence on formal equality (non-discrimination principles of
MFN and national treatment) makes development-oriented legal
change difficult22
 Certain aspects of liberalizing trade do not bring the same welfare
gains across the board and do carry enormous implementation costs
for developing countries, e.g., IP rules23
 S & D and Access to Technology as the primary tools (developed
country/developing country) historically is not enough24
 Newer approaches to trade and development emphasize balanced
rules, even outside of IP, which means assessments of costs and
benefits, preservation of flexibility, transparency of development
impact25
 Link to WIPO Development Agenda items26
 Within IP (both WTO and WIPO): Formalistic rule-making and
rule-interpretation a problem, even for developed countries27
 Impact on innovation is not measurable or facilitated just by
IP protection but through other means28
 Special problems of developing countries: lack of
coordination, combined with growing complexity of the
international IP regime complex and the fragmentation of
policy-making29
 Failure of WIPO to understand its own development
mandate; capture of WIPO by industry and Group B
agendas 30
Reichmann, Drahos, Chon, etc.
Helfer; Raustiala
20 Dinwoodie 1, 3 (with Dreyfuss), 4
21 Bradlow, Broude, Stiglitz and Charlton
22 Broude
23 Stiglitz
24 [but see Mitchell, arguing against S&D?]
25 Ismael
26 Musungu analysis and WIPO documents
27 Dinwoodie and Dreyfuss
28 Musungu, Stiglitz
29 Latif and Musungu
30 Musungu
18
19
4

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
Need to coordinate all UN agencies around development
and IP with respect to specific areas, e.g., public health,
education, etc.31
Enormous challenges even when a crisis such as the AIDS
epidemic is perceived, e.g., negotiations over paragraph 6
of the General Council Decision32
Lack of redistributive mechanisms generally within
international institutions33
A development-oriented international IP balance leads to the strong conclusion that
“positive” action is needed as a legal imperative within international intellectual property, if we
are to take development seriously.34
Barbosa, Chon and Moncayo proposals summarized again: transition.
III. BARBOSA SECTION
(Focus on WTO jurisprudence, TRIPS Arts. 7 and 8, GATT Art. XX, as well as some
domestic decisions incorporating TRIPS into a domestic balance (e.g., the Argentina Unilever
case?)
IV. CHON SECTION
“Policy choices of international social redistribution and economic intervention, can rest only
with difficulty on a legal mechanism of formal non- discrimination; quite the contrary, they
necessitate degrees of "positive discrimination" or "affirmative action", not only between the rich
and the poor, the developed and the developing, but between different sorts and categories of
developing economies.”35
 Define Substantive Equality
o

Differentiate substantive equality from formal equality (MFN and NT)
Apply Substantive Equality
o
WIPO Development Agenda
Id.
32 Opderbeck, ICTSD
33 Gerhart (from previous bibliography)
34 Stiglitz; summary of the latest events of the Doha development round
35 Broude at 35; accord Dinwoodie and Dreyfuss at 220-21 (“But even if the constraints of
international law are lifted or loosened, it can be argued that international intellectual property law should
be framed to do more, that it should be viewed not only as an obstacle to be overcome, but also as an
affirmative protection of the public domain against encroachments by member states.”)
31
5
V. MONCAYO SECTION
Focus on international law principles such as opinio juris (sense of legal obligation), nonderogation clause and freedom of implementation. These are helpful legal concepts to maximize
flexiblities and maintaining domestic balance in the face of hardening global IP regimes.
VI. CONCLUSION
6