International Intellectual Property Shelters

The battle over the reach and strength of international protections for intellectual property rights is one of the critical flashpoints between wealthy and low-income countries: those protections are perceived to obstruct access to essential medicines, thwart regulatory efforts to promote individual and population health, and undermine traditional forms of agriculture and food production. While scholars have thoroughly tracked the bilateral and multilateral trade and investment treaties responsible for the expansion of international intellectual property rights worldwide, they have paid significantly less attention to the strength and form that opposition to international intellectual property expansion has taken. This Article examines the proliferation of international legal agreements that carve out special areas of intellectual property for treatment that differs from protections extended under international trade and investment rules and argues that they should be reconceived as a unified body of international economic law. Responding to demands from low- and middle-income countries that benefits from intellectual property protections be more equitably shared, these international intellectual property shelters include the Doha Declaration on the TRiPS Agreement and Public Health, the World Health Organization’s Pandemic Influenza Preparedness Standard Manual Transfer Agreements, the Framework Convention on Tobacco Control, the International Treaty on Plant Genetic Resources for Food and Agriculture, and the proposed Medical Research and Innovation Treaty This Article analyzes the circumstances that give rise to international intellectual property shelters and the aspects of intellectual property rights they attempt to regulate. While these shelters are advocated as safeguards for areas of global public welfare, such as food security and population health, they tend to arise in areas in which a small number of knowledge-intensive firms dominate global markets. International intellectual property shelters should therefore be understood as forms of supranational regulation of those firms