Intellectual Property in International Trade: Opportunities and Risks of a GATT Connection
Professor Reichman uncovers a paradox at the heart of the debate about bringing international intellectual property relations within a GATT Code of Conduct. On the one hand, the industrialized countries that subscribe to free-market principles at home want to impose a highly regulated market for intellectual goods on the rest of the world, one in which authors and inventors may "reap where they have sown." On the other hand, the developing countries that restrict free competition at home envision a totally unregulated world market for intellectual goods, one in which "competition is the lifeblood of commerce." To unravel this paradox, he identifies a set of postulates for negotiators on both sides. Included in this list is the lack of an international norm against misappropriation; a long-term need to assimilate intangible alien property to the international law of state responsibility; the duty to respect sovereign rights of both rich and poor states to control their own economic destinies; and the emergence of preferential treatment for developing countries as a principle of international economic law.
Armed with these postulates, Professor Reichman derives a set of analytical propositions to guide a TRIPs negotiation conducted in the spirit of cooperation and good faith. A crucial move in this analysis is to distinguish between defensive proposals to institute transnational legal barriers to imports of nonqualifying intellectual goods and offensive proposals to establish universal standards of protection that could limit the development strategies even of states that do not export intellectual goods to major markets. As regards proposals for a defensive alliance bolstered by common border control measures and by the dispute settlement machinery of the GATT, Professor Reichman offers a new interpretation of Article XX(d) that minimizes conflict with the basic GATT disciplines. However, Contracting Parties that participate in a defensive alliance must strictly respect their obligations to provide national treatment under the Paris, Berne, and Geneva (U.C.C.) Conventions, and they may find the transaction costs of implementing the scheme too high in the end.
As regards offensive proposals that pit universal standards of protection against national development strategies, Professor Reichman finds that basic GATT rules cannot be overcome unless preferential measures favoring the developing counties are combined with trade concessions off-setting the costs of economic dislocation. Given such an approach, Professor Reichman suggests that Contracting Parties that already adhere to intellectual property conventions can be persuaded to provide adequate, not maximum, levels of protection for the traditional subject matters of those Conventions, and they should renounce systematic misappropriation of applied scientific know-how. Contracting Parties that do not adhere to one or more intellectual property conventions pose a harder case, but Professor Reichman argues that these states cannot expect indefinitely to exploit the most valuable alien property of all without paying compensation in one form or another.
Professor Reichman fears, however, that maximalist illusions will cause the Uruguay Round to produce fewer positive results than could have been attained in a spirit of moderation and compromise. He warns that continued insistence on universalist theses unacceptable to the developing countries risks provoking these countries to form a "Union" of their own in order to curtail rights that the industrialized countries currently enjoy under existing intellectual property conventions. He points out that the real losers in such a confrontation would be those authors, inventors and trademark proprietors whose livelihood depends on the day-to-day operations of the international system that the Paris and Berne Conventions set in place over a century ago.
J. H. Reichman,
Intellectual Property in International Trade: Opportunities and Risks of a GATT Connection,
22 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol22/iss4/2
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