The Expansion of Intellectual Property Rights by International Agreement: A Case Study Comparing Chile and Australia’s Bilateral FTA Negotiations With the U.S.

This paper attempts to address the ongoing debate regarding the expansion of intellectual property rights (IPRs) through international negotiations. Commentators have described three theories that purport to explain the growing scope of IPRs in international law, as reflected in international agreements: that these agreements reflect coercion by economically powerful nations; that they are the products of lobbying by multinational corporations; and that they represent autonomous, welfare-enhancing instruments that benefit all parties. The article tests these theories by using a case study comparing free trade agreement negotiations that the United States recently concluded with a less developed country, Chile, and with a developed country, Australia. The article concludes that expanded IPRs in international trade agreements are most plausibly explained under the third theory. Relying on that conclusion, related issues in the debate over international intellectual property law are addressed, including which forum, bilateral or multilateral, is most equitable for less developed countries when negotiating international agreements regarding IPRs. Additionally, the recently proposed theory that Non Government Organizations (NGOs) should be involved in such IPR negotiations is assessed. Specifically, the applicability and ramifications that NGOs may have upon such negotiations are analyzed and a rationale explaining when, if ever, they should have active roles in the process is asserted