An International Acquis: Integrating Regimes and Restoring Balance

An International Acquis: Integrating Regimes and Restoring Balance

Description

The TRIPS Agreement is hardly the last word in international intellectual property lawmaking. Bilateral, plurilateral, and regional agreements, along with a multiplicity of training tools, guides, and resource books have followed in its wake. Intellectual property is a high-stakes commodity in the Knowledge Economy. Accordingly, this ferment in norm formation is unlikely to abate. Nations in the North with an interest in commodifying their knowledge-based output will continue to shop for (or create new) institutions that will endorse or develop higher standards of intellectual property protection, while those countries at the opposite end of the development spectrum will not abandon the search for for a more solicitous to user interests, distributive justice, health, and development. We have elsewhere proposed procedural and institutional mechanisms for integrating all of these activities into the TRIPS Agreement, including new approaches to interpretation of the Agreement. However, interpretive approaches can go only so far. They are essentially backward-looking solutions; they do not preclude legal fragmentation and thus can only resolve the problems fragmentation produces. Yet coherence is essential to robust innovation: creativity cannot flourish without a greater degree of certainty than the current regime permits. Of course, absolute certainty is not realistic and, moreover, is less than ideal if national experimentation and cross-border trade are both valued. We believe, however, that it is possible to do better. In this chapter, we suggest that the time has come to crystallize the learning accumulated in the century and a half since the multinational system was born. We tease out and make explicit the elements of what we term an international intellectual property “acquis”—a set of basic principles that form the background norms animating the intellectual property system. The concept of an acquis is relatively new to international law. The World Trade Organization (WTO) borrowed it from European Union (EU) law, where the phrase “acquis communautaire” has in recent years been used to describe the body of existing legal principles and commitments to which new members of the EU must ascribe. In this sense, it is easy to see why it made sense for the Dispute Settlement Body (DSB) to adopt the term; like the EU, the WTO involves a “single undertaking,” and new members must sign up to the entire range of principles that govern the membership. However, the term also has a functional dimension. The Appellate Body referred to the concept of an acquis in Japan—Taxes on Alcoholic Beverages to explain that panel reports should be relevant in adjudicating future disputes because this practice would protect legitimate expectations. And later scholarly treatment of the concept suggests that it reflects efforts not only to protect legitimate expectations, but also to fill gaps, and to create certainty and predictability. Moreover, the US–110(5) panel, which issued the first TRIPS report to refer to an acquis (the Berne acquis), appeared to add another dimension to the concept, regarding the acquis as a body of principles reflected in a treaty regime, even if not always expressed. The concept of an acquis is therefore fluid. We adopt it here as much for its functional characteristics as for its (relatively new) international application. While an acquis is typically associated with a particular instrument or institution, the goals of an acquis are equally relevant to the international intellectual property system as a whole. Recognizing elements as cross-cutting features underlying all instruments constituting the system would facilitate the resolution of international disputes and rectify the problems in decision making that flow from having to take account of the diverse dimensions to intellectual property law. In TRIPS, it would clarify the normative underpinnings of intellectual property law, flesh out the principles and objectives found in Articles 7 and 8 of the TRIPS Agreement, and enable the DSB to situate particular challenges in the broader context of knowledge governance. Moreover, the acquis would complement devices of integration that we have previously discussed as a means of bringing coherence to the international intellectual property system. Prospectively, the acquis would create a legal framework to structure future international lawmaking and thus reduce the incidence of fragmentation. It would furnish a useful guide to international negotiators, especially those who are unfamiliar with intellectual property law and lore. As it develops in response to new challenges, the acquis would harness the expertise of the diverse array of institutions now operating in this arena. By establishing the norms to which all participants in the intellectual property system can be regarded as having subscribed, the acquis would focus debate and reduce the transaction costs of mediating among multiple conflicting initiatives. For developing countries, broad acceptance of the principles in the acquis would provide bargaining leverage, help address the challenges of political economy, and ameliorate the problems of capacity that TRIPS compliance has brought into relief. We draw the content of the acquis from national and international intellectual property law, along with associated jurisprudence and scholarship. An examination of these sources reveals that certain principles have a historical pedigree that elevates them to the status of an agreed norm. The minor exceptions doctrine, which was recognized as part of the Berne acquis in the US–110(5) report, furnishes an example. Other fundamental norms can be gleaned from the frequency with which they appear across a variety of instruments. Some elements derive from the features we see as at the heart of the international intellectual property system: diversity, balance, and historical contingency. Other components emanate from the purposes that first instigated the move to international law, namely, the interdependence of nations in the production of knowledge and trade in knowledge-intensive goods. Experience with TRIPS shows that intellectual property cannot be isolated from broader public policy concerns, such as a commitment to expressive values or access to essential medicines. Thus, in establishing the acquis, we do not confine our examination to purely intellectual property instruments. We begin this chapter with an explanation of why we believe the time to be ripe for articulating these transcendent principles. We next initiate the process of identifying the elements of the acquis, including principles we regard as emerging. We start with those that protect access because many of these are latent in international intellectual property instruments, and one important goal of constructing an acquis is to make them explicit. We then proceed to principles that protect proprietary interests and national autonomy, and reflect the interdependence of nations. We conclude with a discussion of the ways in which the acquis might shape the future progress of the international intellectual property system, including how it might be used to supplement Articles 7 and 8 of TRIPS, and applied and enforced in a variety of settings.

Source Publication

International Intellectual Property: A Handbook of Contemporary Research

Source Editors/Authors

Daniel J. Gervais

Publication Date

2015

An International Acquis: Integrating Regimes and Restoring Balance

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