The rise and rule of a trade-based strategy: Historical institutionalism and the international regulation of intellectual property

ABSTRACT

One of the most dramatic instances of international market regulation in the twentieth century was the adoption of a multilateral, enforceable, intellectual property protection regime at the end of the Uruguay Round of trade negotiations in 1994. The Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) ushered in a new era of high standards of intellectual property protection, requiring profound and costly domestic institutional changes in many, many countries. International market regulation has increasingly penetrated domestic regulatory environments in ways that have compromised domestic political bargains. Historical institutionalism can help to explain the emergence of a global regime for intellectual property protection as a product of institutional change in the US. Historical institutionalism provides a lens to examine the directly political (rather than technocratic or efficiency maximizing) processes establishing domestic and international power relations.

KEYWORDS:

• Intellectual property
• trade
• historical institutionalism
• developing countries

ACKNOWLEDGEMENTS

I am grateful to Henry Farrell and Abe Newman who brought me into this project. They provided helpful and detailed constructive comments throughout. I thank Paul Pierson, Ken Shadlen, John Zysman, and the participants of the University of California Berkeley workshop for their comments and advice. The anonymous reviewers provided incisive comments on the original draft that helped to improve the final version.

Notes

1 Intellectual property includes patents, copyrights, trademarks, and trade secrets.

2 Based on author's interview with Jacques Gorlin, 22 January 1996, Washington, DC.

3 Interview with Jacques Gorlin, who had consulted key private sector actors in the run-up to TRIPS and stated that they were astonished that they got ‘95 per cent’ of what they had wanted.

4 Hacker (2004) makes a distinction here, but it strikes me that layering is a particular mode of conversion rather than a completely discrete phenomenon. For instance, the International Monetary Fund has been ‘converted’ dramatically over time from a lender of short term liquidity to industrialized countries after World War II, to the global South's debt manager in the 1980s, to a lender of last resort in global financial crises in the 1990s and beyond. Layering new policies atop the original mandate had the effect of radical functional conversion of the institution as a whole.

5 http://www.ustr.gov

6 This was before Napster and the peer-to-peer file sharing revolution.

7 Author's interview with Jacques Gorlin, 22 January 1996, Washington, DC.

8 Author's interview with Jacques Gorlin, 22 January 1996, Washington, DC.

9 TRIPS-Plus refers to provisions that exceed TRIPS in terms of scope or time or subject matter.

10 Sharman (2008) underscores that in the case of developing countries, such emulation often follows more coercive mechanisms (in his case, blacklisting, in intellectual property policy naming and shaming – ‘pirate’, ‘thief’).

11 Although Dobbin et al. (2007) and Sharman (2008) make some progress in this direction.

12 Agreement on Trade-Related Aspects of Intellectual Property Rights, Article 67, http://www.wto.org/english.docs_e/legal_e/27-trips_e.htm accessed 14 July 2010.