ntellectual property rights (IPRs) are complicated creatures. They are property rights, exclusionary in nature, covering assets that are ethereal and dynamic. Often these rights are controversial, even paradoxical. They are territorial, but their subject matters defy borders, and their aim to protect the ingenuity and investment of their creators requires international cooperation. They are structural elements of monopolistic webs and, at the same time, the tools that enable competition: they bring to the surface innovations that would have otherwise remained covered by secrecy, but also, by being part of a broader market regulatory context, they protect against unfair competition, on the one hand, and defend competition, on the other. They are engines for growth and development as well as weapons, disguised as rights, used in trade wars and power games. Be that so, they cover all aspects of our economies and daily lives, the whole gamut from aestheticism to applied industry to product origin.
Rules-based World Order: The World Intellectual Property Organization and World Trade Organization
Diplomatic attempts to deal with these issues at the international level culminated in two twentieth-century milestones. First, in 1967, the Stockholm Conference adopted the revised versions of the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property, and created a new agency of the United Nations, the World Intellectual Property Organization (WIPO), a coalescing body that brought together diverse, sometimes antithetical, approaches, aims and traditions. WIPO built a consensus around the definition, scope and extent of protection of IPRs that kept on growing, updating the two conventions and building new agreements at the periphery of traditional IPRs.
The creation of WIPO was evidence of a world trying to overcome the traumas of the two world wars, create a new world order, and revitalize development and trade on a stable foundation of commonly adopted, longer-standing rules rather than on raw, ephemeral might. Recognizing that creating the conditions for enduring peace and security depended on respect for human rights and opportunities for economic development, the community of nations made the revitalization of trade its first priority following the conclusion of World War II. Thus, the first step toward the creation of the United Nations and the adoption of the UN Charter in 1945 was a multilateral system facilitating the flow of trade across borders as agreed at Bretton Woods in 1944. However, between 1948 and 1950, an attempt to create the International Trade Organization failed because of congressional resistance in the United States. During the 1948–1994 period, global trade was facilitated through a covenant among governments, the General Agreement on Tariffs and Trade (GATT). That position was overturned in 1994 when the World Trade Organization (WTO) was finally created, following the long Uruguay Round negotiations, as a body that would function between 1995 and 2019 not only as a forum for global trade negotiations but also as the most successful example of an international dispute settlement system.
During the 1980s, it became clear that intellectual property (IP) had to become part of the trade framework operated by GATT. In essence, the system allowed the application of IP legislation at the national level, provided that it would not be “in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade.”1
The exceptionalism of IP meant that lawyers and state officials could argue for years whether patent laws and procedures constituted a disguised restriction and, if they did, the extent to which they would have to be amended.2
The prevalence of IP in international trade meant that unless it became part of the agreements on trade, the system in its entirety risked paralysis. Negotiations that started during the second half of the 1980s and engaged governments as well as WIPO resulted in the development during the Uruguay Round of an additional Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement), adopted at Marrakesh in 1994.
Daniel Gervais describes the complexity and intricacies of an uncertain negotiating process constantly tilting between North and South.3 But during this period all parties recognized that the world trade system could not function without integrating IP. The controversies and paradoxes surrounding IPRs were resolved diplomatically in the form of a trade-off, with the promise of increased agricultural market access for the developing countries. With that last jigsaw puzzle piece in place, a new WTO was established in Geneva on January 1, 1995.
What started as a noisy forum ended with a comprehensive agreement that appeared to hijack WIPO’s agenda by providing the element missing from WIPO’s own consensus: enforcement. And so it was that the TRIPS Agreement and the introduction of the WTO became the second milestone; the TRIPS Agreement adopted the then-current status quo in IP, completed gaps that had been left open, extended protection to new rights and, most importantly, required that member states would also have to introduce adequate enforcement measures. A second aspect of enforcement focused on the enforcement of the agreement itself; members that failed to honour their obligations could find themselves at the receiving end of a dispute resolution system, one that, as we’ve observed already, has now stalled. At the same time, the extent of the TRIPS Agreement’s application would vary according to the level of a member’s economic development, and there are compulsory licensing mechanism options available covering public health and similar cases.
The WTO’s website4 provides a wealth of information on the history of the negotiations, current issues and reviews of dispute settlements involving IP. The relatively small number of disputes, 42, and the fact that a large number were resolved through mutual agreement show that the system works. There is criticism, of course: such issues as the balance between patent protection for pharmaceutical products and access to generic drugs in developing economies or the limitations that health regulations can impose to trademark rights for tobacco products are not easy. Attacks come from diametrically opposed quarters: there are constant cries both against too much protection and for higher standards or more intrusive regulation.
Challenges and Opportunities
Nonetheless, there are two fundamental challenges that could also be viewed as opportunities.
The first has to do with the position of the WTO against a shifting global political environment. Looking at what is happening under the aegis of the WTO is not enough. Bilateral trade agreements use IP as either a sword or a barrier; members move toward territorial arrangements rather than international agreements; tariff and non-tariff barriers are threatened without too much consideration for their knock-on effects; both real and exaggerated concerns regarding sovereignty and the role of the Appellate Body have brought the dispute resolution mechanisms of the WTO into a state of quasi paralysis. The list of geopolitical challenges is long. Still, the WTO is evidence of a rules-based architecture: ignore it, knock down walls according to interest and might, and the unintended consequences of unilateralism could be to bring the whole house down. Should the WTO reinvent itself as a bastion of rules-based systems and redefine itself as a forum that influences businesses to address their impact on human rights and the environment? This question applies as much or more to IPRs as it does to other areas.
The second challenge is linked with the effects of artificial intelligence (AI) — and here there are a couple of issues to consider. The first is how AI will influence the way we perceive IP and apply IPRs, focusing in particular on copyright and patents. From a copyright perspective, we dealt with aspects of the “who is the author or the inventor” question when at the turn of the century we considered computer-generated works. That problem was easy to resolve: the machines were following programs created by humans; they were preprogrammed by humans, unable to exercise their own choices. But how far would we be willing to link the work of a machine with the creator of the machine if the machine itself could exhibit intelligent behaviour, similar to that of a human? Alan Turing, the father of theoretical computer science who came up with the Turing test, once said, in terms of what were then hypothetical creations that could pass off as human, “The isolated man does not develop any intellectual power. It is necessary for him to be immersed in an environment of other[s]...The search for new techniques must be regarded as carried out by the human community as a whole, rather than by individuals.”5 There is a debate to be had here, between communitarianism and liberalism, as philosophers call it, but for the skeptic the answer may be hidden in the second part of Turing’s statement. Who, now, is an individual?
From a patent law perspective, there is a related “inventive step” consideration; determining what would appear obvious to a person skilled in the art is challenging when that person is aided by machines that can intelligently analyze enormous amounts of data. This is a fundamental issue, in terms of the scope of protection, when the inventor is aided by the machine, but also from the perspective of patent validity, when much more would appear obvious following an analysis executed exclusively by a machine.
It may be that these questions can be answered within the current parameters of copyright and patent law; but, equally, one could argue that there is a fundamental shift in terms of what we want to protect: should the law give IP protection to pure outcomes rather than to the results of human creativity? Such a shift could mean that the way we view IP will change so radically that the TRIPS Agreement will become irrelevant. It is the regulation of AI and the flow of data at a global level that will become the new essential requirements for international trade. But, as always in a challenge, there is a hidden opportunity. Perhaps the WTO, supported by WIPO and other international bodies, is the right forum in which to explore these existential IP questions and, if required, to come up with a new architecture for preserving free trade.
Plurilateralism and the introduction of non-state actors under the WTO umbrella and a paradigm shift in terms of regulatory context are ideas that might appear today as farfetched as the TRIPS Agreement appeared in the 1980s. One potential model for the WTO could be the meetings currently going on in Working Group III of the United Nations Commission on International Trade Law, where there is a significant representation of non-state entities as observers in the discussions on the reform of investor-state dispute settlement.
1 General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 194, TIAS 1700 art XX(d) (entered into force 1 January 1948).
2 See Daniel Gervais, The TRIPS Agreement: Drafting History and Analysis, 4th ed (London, UK: Sweet & Maxwell, 2012) at para 1.07. Gervais provides an excellent analysis of the TRIPS Agreement and a comprehensive review of its historical context.
4 WTO, “Disputes by agreement: Intellectual Property (TRIPS)”, online: <www.wto.org/english/tratop_e/dispu_e/dispu_agreements_index_e.htm?id=A26#selected_agreement>.
5 See Andrew Hodges, Alan Turing: The Enigma (Princeton, NJ: Princeton University Press, 2014) at 384, cited in Harry Thompson, “What Alan Turing means to us” (23 June 2019), online: (blog) <www.turing.ac.uk/blog/what-alan-turing-means-us>.