Another tidbit on IP and trade deals

Author: Alexander Stack Professional Corporation |

A footnote from my book:

Braithwaite and Drahos state that business regulatory contests are fought at the level of principles rather than details because “the informational demands of rule systems would make any contest at this level intolerably complex. Trade negotiators cannot, for example, walk into rooms in Geneva armed with their respective Telecommunications Acts under their arms and say to their counterparts ‘this is what we want.’ Often they will have very little idea about the details of their domestic systems. (One US trade negotiator told us that US trade people were ‘ignorant’ of intellectual property law. The US overcame this by sending several intellectual property specialists as part of its negotiating team on TRIPS.)”. Braithwaite and Drahos, GBR, supra note 13 at 527. Without the knowledge and detailed pre-existing discussions in the WIPO and other contexts, the TRIPs Agreement could not have achieved its high level of detail

In other words, Braithwaite and Drahos state that trade negotiators can't get too detailed in their negotiations... and then immediately note that Intellectual Property is an exception.

Assuming you agree with that... the next question is why is IP different?

One answer may be the presence of WIPO, where detailed international discussions do take place. In other words, there is intellectual capital - a consideration of the details of possible international IP agreements - present in another international institution that the WTO or other trade negotiators can draw on.

Another answer may be that since international cooperation in IP is driven by private interests who have an interest in their governments cooperating... the governments are forced down the path of a more detailed consideration of IP than in other areas.

This doesn't strike me as persuasive. There are lots of other areas in international economic agreements where governments are pushed towards cooperation by their national industries, but as noted by Braithwaite and Drahos they don't lead to considerations of the details of Telecom law, or whatever. If its in the interests of industry to have detailed IP treaties, I don't see why its not also in their interest to have detailed treaties in other areas.

Another answer - the one I like right now, though ask me again tomorrow ;) - is that it has to do with the inherent nature/history of the subject matter of the agreement - intellectual property. Its not the same as negotiating international agreements in Telecom, or the postal service, or tariffs, or ozone depleting chemicals or competition law (though its closer to that) or ... (you get the idea :) )

OK, but can I be more specific? and doesn't this just overlap with the first two suggestions anyway?

- IP is the subject-area with perhaps the longest history of international cooperation - unsurprisingly, it has developed the greatest detail in its consideration

- the nature of IP is such that general agreements are meaningless without the details

- in the absence of the ability to meaningfully write down core patent law principles, countries are forced to overly-detail the edges? (that doesn't strike me as right)

- a lack of trust between countries on IP matters? (but why more in IP than other areas?)

- very different domestic understandings of IP imply that detailed international agreements have to be concluded for everyone to understand (and accept) what they are agreeing to?

- some sort of capture of the USTR story?



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