The Second Transformation of the International Intellectual Property Regime
CONSTITUTIONAL HEDGES OF INTELLECTUAL PROPERTY, Jonathan Griffiths and Tuomas Mylly, eds., Oxford University Press, 2021, Forthcoming
19 Pages Posted: 7 Nov 2019 Last revised: 10 Sep 2020
Date Written: November 6, 2019
A quarter of a century ago, the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the WTO transformed the international intellectual property regime. This Agreement ushered in not only new international minimum standards for protecting and enforcing intellectual property rights but also major changes to domestic intellectual property systems across the world.
Today, the international intellectual property regime is being transformed once again. Thanks to the proliferation of bilateral, regional and plurilateral trade and investment agreements, new international minimum standards are being developed to protect the investment-related aspects of intellectual property rights. Unlike the WTO, which provides for only state-to-state dispute settlement, the investor-state dispute settlement mechanism built into these newly adopted international agreements enables private investors, such as intellectual property rights holders, to sue foreign governments without the support of their home governments. In view of the potential ramifications of this new mechanism, and the related commitments under new international investment agreements, one cannot help but wonder whether the international intellectual property regime is now experiencing yet another "sea change" or "tectonic shift."
Focusing on the potential second transformation of the international intellectual property regime brought about by the growing intrusion of international investment norms, this chapter addresses the structural changes that these new norms have posed to the regime. It begins by documenting changes brought about by the first and potential second transformations of this regime. The chapter then discusses three sets of problems that have emerged when international investment norms intrude into the intellectual property domain. It concludes by proposing three solutions to curtail inappropriate and unnecessary intrusions and to improve the engagement of international intellectual property and investment norms. Matching the central theme of this edited volume, all of these solutions involve constitutional hedges around the intellectual property domain.
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