Distributed governance at the WTO-WIPO: An evolving model for open-architecture integrated governance

Journal of International Economic Law

Volumn 3, Issue 1, 2000, Pages 63-81

  Abbott, Frederick M ^a,b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b CHICAGO KENT COLLEGE OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034381218     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/3.1.63     Document Type: Article

References (44)

1. See e.g., F. M. Abbott, 'WTO Dispute Settlement and the Agreement on Trade-Related Aspects of Intellectual Property Rights' in E.-U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System (1997), 415, and 'The Future of the Multilateral Trading System in the Context of TRIPS', 20 Hastings Int'l & Comp L Rev 661 (1997).
2. See e.g., F. M. Abbott, 'WTO Dispute Settlement and the Agreement on Trade-Related Aspects of Intellectual Property Rights' in E.-U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement System (1997), 415, and 'The Future of the Multilateral Trading System in the Context of TRIPS', 20 Hastings Int'l & Comp L Rev 661 (1997).
3. See generally, Adrian Otten, 'Implementation of the TRIPS Agreement and Prospects for Its Further Development', 1 J Int'l Econ L 523 (1998).
4. See generally, F. Abbott, T. Cottier, and F. Gurry, The International Intellectual Property System: Commentary and Materials (1999).
5. For example, the WIPO negotiations on the Copyright Treaty and the Performances and Phonograms Treaty have been praised by some leading commentators as an example of a new institutional receptivity to nongovernmental interests. See Jerome Reichman, Remarks at World Trade Forum Conference on Intellectual Property: Trade, Competition and Sustainable Development, 27-28 August 1999 (notes in author's files). A substantial number of NGOs representing scientific and research groups, and the education community, was present during these negotiations and met extensively with the government negotiators. It is certainly true that the WCT and WPPT are fairly balanced agreements in the context of taking into account the interests of consumers, producers, developed and developing countries. However, the spirit of a new openness should not be exaggerated. Other commentators have observed that the balanced result was largely achieved because United States telecommunications industries, with the backing of the President, arrived in Geneva determined to assure that their liability for activities taking place on the Internet was limited. See Pamela Samuelson, 'The US Digital Agenda at WIPO', 37 Va J Int'l L 369 (1997).
6. For example, the WIPO negotiations on the Copyright Treaty and the Performances and Phonograms Treaty have been praised by some leading commentators as an example of a new institutional receptivity to nongovernmental interests. See Jerome Reichman, Remarks at World Trade Forum Conference on Intellectual Property: Trade, Competition and Sustainable Development, 27-28 August 1999 (notes in author's files). A substantial number of NGOs representing scientific and research groups, and the education community, was present during these negotiations and met extensively with the government negotiators. It is certainly true that the WCT and WPPT are fairly balanced agreements in the context of taking into account the interests of consumers, producers, developed and developing countries. However, the spirit of a new openness should not be exaggerated. Other commentators have observed that the balanced result was largely achieved because United States telecommunications industries, with the backing of the President, arrived in Geneva determined to assure that their liability for activities taking place on the Internet was limited. See Pamela Samuelson, 'The US Digital Agenda at WIPO', 37 Va J Int'l L 369 (1997).
7. The influence of a particular institutional culture on the possibilities for cooperation should not be entirely discounted. Cf. Edith Brown Weiss, 'Environment and Trade as Partners in Sustainable Development', 86 AJIL 728 (1992), for discussion of importance of different negotiator cultures in fields of environment and trade.
8. Regarding the potential transposition of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, see 'The Future of the Multilateral Trading System', above, note 1. There has also been suggestion by some WTO Members that provisions of the Convention on Biological Diversity regarding sovereignty over genetic resources be incorporated in the TRIPS Agreement.
9. Thomas Cottier called this author's attention to this aspect of the role of WTO in connection with a previous article (see 'The Future of the Multilateral Trading System', id) and has done so in connection with this essay as well.
10. An illustration is provided by the willingness of developing countries to block consensus in the appointment of a new Director-General, leading ultimately to the European Central Bank-model outcome.
11. An example of the WTO's lack of sophistication in IPRs matter is evident in the direct transposition of copyright fair use provisions into TRIPS patent rules.
12. The premise of the WTO Model is that national governments represent all constituent interests which are channeled into efficient negotiations and decision-making at the multilateral level. The WTO constantly reiterates that it is a 'Member-driven' organization and that its Secretariat is not an autonomous policy formulation body. On important occasions, the WTO Secretariat has played a substantial role in policy formulation; notably, by preparing and circulationg the Dunkel Draft text that formed the basis for concluding the Uruguay Round. In this context, the Secretariat used its neutral role to suggest a compromise among competing Member perspectives.
13. Remarks of Adrian Otten, Director of Intellectual Property and Investment Division, at WIPO meeting of International Trade Law Committee of International Law Association, 25 June 1999.
14. See e.g., the India-Mailbox decision of the WTO Appellate Body (India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, AB-1997-5, WT/DS50/AB/R, 19 December 1997), and the panel process involving Canada and its legislation concerning generic pharmaceuticals (http:www/wto.org).
15. See WIPO, 'The Management of Internet Names and Addresses: Intellectual Property Issues, Report of the WIPO Internet Domain Name Process', http://wipo2.wipo.int, 30 April 1999, WIPO Pub. No. 439 (E) (hereinafter WIPO Report), and Testimony, 28 July 1999, Francis Gurry, 'Competition in Assigning Internet Domain Names', House Judiciary, Subcomm. Courts and Intellectual Property, Fed Doc CH, Cong. Testimony, 29 July 1999 (Lexis/Nexis).
16. See WIPO, 'The Management of Internet Names and Addresses: Intellectual Property Issues, Report of the WIPO Internet Domain Name Process', http://wipo2.wipo.int, 30 April 1999, WIPO Pub. No. 439 (E) (hereinafter WIPO Report), and Testimony, 28 July 1999, Francis Gurry, 'Competition in Assigning Internet Domain Names', House Judiciary, Subcomm. Courts and Intellectual Property, Fed Doc CH, Cong. Testimony, 29 July 1999 (Lexis/Nexis).
17. The specifics of the process are spelled out in some detail in the WIPO Report. The methodological principles are discussed below text at note 20. This includes data on the number and location of public meetings convened, and the number and category of persons (including governments and international organizations) that took part in the process. Over 1200 persons attended public meetings, and over 200 presentations were made by them at these meetings. Over 1300 persons from 74 countries subscribed to the WIPO Internet service that provided information concerning the process, and over 400 subscribed to the listserver discussion forum. Id at paras 26-30.
18. Id at para 44.
19. Id.
20. Note, however, that the European Commission is a regional bureaucracy that plays an important role in rule generation. See also note 10 above, which identifies the WTO Secretariat's preparation of the Dunkel Draft text as an exception to its ordinarily more passive role.
21. Jeri Clausing, 'Internet Oversight Board Adopts New Rules on Domain Names', NY Times (27 August 1999), at C2; 'Berlin Meeting Launches ICANN Support Organisations', Communications Standards News (5 August 1999).
22. Jeri Clausing, 'Internet Oversight Board Adopts New Rules on Domain Names', NY Times (27 August 1999), at C2; 'Berlin Meeting Launches ICANN Support Organisations', Communications Standards News (5 August 1999).
23. - able to trademark holders than are the WIPO recommendations, though not so very much more favorable after a toning down process. See e.g., Introduction of Anti-Cybersquatting Bill (S. 1461), 58 PTCJ 436, 5 August 1999 [Cong. Rec. 7/29/99, p.H9749, Domain Name Piracy Prevention Act of 1999 (S. 1461), Introduced, Cong. Rec. 7/29/99, at S9749].
24. So long as the WIPO secretariat is not accorded power to adopt binding rules, the lack of direct accountability of WIPO personnel to a national or regional power structure may involve an issue of somewhat reduced urgency.
25. WIPO Report, paras 32-37.
26. 'The income gap between the fifth of the world's people living in the richest countries and the fifth in the poorest was 74 to 1 in 1997, up from 60 to 1 in 1990 and 30 to 1 in 1960 ... OECD countries, with 19% of the global population, have 71% of global trade in goods and services, 58% of foreign direct investment and 91% of all Internet users.' U.N. Development Program (UNPD), Human Development Report 1999, Globalization with a Human Face, at 3.
27. The developing countries have so far strongly resisted the idea of introducing labor protection into the WTO framework. Nevertheless, the same countries strongly resisted introducing intellectual property rights protection into the GATT. It would therefore be premature to discount the possibility that a more highly evolved relationship between the WTO and ILO might be negotiated in the context of a new WTO Round.
28. International standards setting agencies such as the Food and Agriculture Organization (Codex Alimentarius) have operated under the direction of national government agencies (e.g., US Dept. of Agriculture and FDA). Technical standards setting bodies, e.g., in the electronics sector, may be directly operated by producers. Regarding technical standards setting and its impact on trade, see Alan O. Sykes, Product Standards for Internationally Integrated Goods Markets (1995) and F. M. Abbott, 'GATT and the European Community: A Formula for Peaceful Coexistence', 12 Mich J Int'l L 1 (1990).
29. International standards setting agencies such as the Food and Agriculture Organization (Codex Alimentarius) have operated under the direction of national government agencies (e.g., US Dept. of Agriculture and FDA). Technical standards setting bodies, e.g., in the electronics sector, may be directly operated by producers. Regarding technical standards setting and its impact on trade, see Alan O. Sykes, Product Standards for Internationally Integrated Goods Markets (1995) and F. M. Abbott, 'GATT and the European Community: A Formula for Peaceful Coexistence', 12 Mich J Int'l L 1 (1990).
30. 27 Operating procedures of the FAO/WHO for the adoption of Codex standards is summarized in 'EC Measures Concerning Meat and Meat Products (Hormones)', Report of the Panel, WT/DS26/R/ USA, 18 August 1997, at para 2.11-2.16.
31. WTO Appellate Body, 'EC Measures Concerning Meat and Meat Products (Hormones)', AB-1997-4 WT/DS26/AB/R, WT/DS48/AB/R, 16 January 1998.
32. See e.g., Codex Alimentarius Commission (FAO/WHO), Joint FAO/WHO Food Standards Program, 23rd Session (28 June-3 July 1999) ALINORM 99/32, Report of the Fifth Session of the Codex Coordinating Committee for North America and the South West Pacific, 6-9 October 1998, and: FAO Press Release 99/41, The Codex Alimentarius Commission Approves Guidelines for Organic Food and Sets Up Taskforces on Standards for Foods Derived from Biotechnology, Animal Feeding and Fruit Juices (4 July 1999), http://www.fao.org.
33. See e.g., Codex Alimentarius Commission (FAO/WHO), Joint FAO/WHO Food Standards Program, 23rd Session (28 June-3 July 1999) ALINORM 99/32, Report of the Fifth Session of the Codex Coordinating Committee for North America and the South West Pacific, 6-9 October 1998, and: FAO Press Release 99/41, The Codex Alimentarius Commission Approves Guidelines for Organic Food and Sets Up Taskforces on Standards for Foods Derived from Biotechnology, Animal Feeding and Fruit Juices (4 July 1999), http://www.fao.org.
34. The obstacles should not be minimized, as developing countries have been highly resistant to the incorporation of environment-related rules in the WTO system.
35. For explanation of 'good governance' as that term is understood in the IMF/World Bank context, see Thomas Cottier, 'Emerging Doctrines of Good Governance: The Impact of the WTO and China's Accession' in F. M. Abbott (ed.), China in the World Trading System (1998), 119.
36. WTO Agreement, Article 3:5 ('With a view to achieving greater coherence in global economic policymaking, the WTO shall cooperate, as appropriate, with the International Monetary Fund and with the International Bank for Reconstruction and Development and its affiliated agencies.')
37. See WTO, 'High-Level Meeting on Integrated Initiatives for Least-Developed Countries' Trade Development', WT/LDC/HL/1/Rev. 1, 23 October 1997.
38. See the 'Report of the International Institute for Sustainable Development on the WTO's High-Level Symposium on Trade and Development', held in Geneva in March 1998 (http://www.wto.org). This summary reflects views of developing countries and multilateral institutions such as UNCTAD and ECOSOC on the importance of coordinating trade policies with human rights-related policies.
39. See 'Preparations for the 1999 Ministerial Conference, Proposal on Technical Assistance/Capacity Building', Communication from the United States, WT/GC/W/276, 28 July 1999; 'EC Approach to Capacity Building and Coherence in Global Economic Policy-Making, Communication from the European Community', WT/GC/W/297, 5 August 1999; 'Technical Assistance', Communication from Canada, Denmark, Netherlands, Norway, Sweden, and Switzerland, WT/GC/W/259, 21 July 1999.
40. See 'Preparations for the 1999 Ministerial Conference, Proposal on Technical Assistance/Capacity Building', Communication from the United States, WT/GC/W/276, 28 July 1999; 'EC Approach to Capacity Building and Coherence in Global Economic Policy-Making, Communication from the European Community', WT/GC/W/297, 5 August 1999; 'Technical Assistance', Communication from Canada, Denmark, Netherlands, Norway, Sweden, and Switzerland, WT/GC/W/259, 21 July 1999.
41. Preparations for the 1999 Ministerial Conference, 'Addressing the Challenges of Globalization: The Role of the WTO in Cooperation with Other International Organizations', Communication from the European Communities, WT/GC/W/391, 12 November 1999.
42. See note 26, above.
43. Could a distributed governance model assist in dealing with social preferences - for example, a European Union preference for television programming produced by European nationals? The very premise of trade restrictions based on cultural preferences is that culture is differentiated along national, regional, or local lines. Trade rules regulating socio-cultural preferences are defensive in nature. They act to preclude the use of cultural justifications for achieving trade discriminatory ends. If an Internet direct-access process were used to define cultural preferences, this might aid in assuring that such preferences were genuinely adopted because of public demands and not as the result of disguised producer interests. Nonetheless, it would seem that the WIPO direct-access open architecture would be less useful in addressing social preferences than in addressing indeterminate science because social preference rules are in general not intended to be 'approximated'.
44. See 'Future of the Multilateral Trading System', above note 1.