Currents and Crosscurrents in the International Intellectual Property Regime

Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent one-way ratchet will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and the Geneva Declaration on the Future of WIPO. This Article challenges the incomplete views held by those on both sides of the debate and argues that the recent developments are neither new nor surprising. To help us better understand these developments, the Article traces the historical development of the international intellectual property regime and demonstrates that this regime is a product of repeated interactions between various sets of currents and crosscurrents. While the currents of multilateralism push for uniformity and harmonization, the crosscurrents of resistance enable countries to retain diversity while engaging in continuous legal experimentation. By bringing together these currents and crosscurrents, this Article demonstrates that the international intellectual property regime is an ongoing project that provides opportunities and crises for both developed and less developed countries, as well as rightsholders and individual end-users. This Article traces the origins of the Berne and Paris Conventions, the TRIPs Agreement, and the 1996 WIPO Internet Treaties. It discusses how countries became dissatisfied with the use of bilateral agreements to protect authors and inventors in foreign countries and thus pushed for the establishment of multilateral treaties. It also explores five crosscurrents that have emerged in the international intellectual property regime in recent years: reciprocization, diversification, bilateralism, non-nationalization, and abandonment. This Article suggests that these crosscurrents may undercut international harmonization efforts and create new challenges for the regime. It concludes by providing observations in five different areas: bargaining frameworks, regime development, global lawmaking, harmonization efforts, and judicial trends