The changing structure and governance on intellectual property enforcement

Twelve years ago the TRIPS Agreement introduced global minimum standards of intellectual property protection and enforcement. To the extent that the substantive obligations under the Agreement have now been widely implemented in national legislation, developing countries are facing increased pressure to bolster intellectual property enforcement. The European Union, Japan and the United States are undertaking next efforts to strengthen and harmonize at the international level the various means by which countries seek to enforce intellectual property rights. To boost the agenda key have jointly announced plans to negotiate a new international anti-counterfeit treaty indecently of WIPO and have made intellectual property enforcement a priority issue for the G8. This research paper provides a broad overview and analysis of the changing multilateral framework for intellectual property enforcement and the challenged that it presents for developing countries. It examines current multilateral obligations and traces developments in the field of intellectual property enforcement in various multilateral fora, including the WCO, WHO, WIPO, WTO and Interpol. Finally, it analyses the approach of the United States and European Union to strengthening intellectual property enforcement in third countries through regional, bilateral and unilateral mechanisms such as regional and bilateral agreements. The main findings of the paper are the following: Greater coordination and dialogue involving the private sector, government and civil society stakeholders are necessary to find appropriate solutions to both supply and demand problems related to the trade in international counterfeit trademark and pirated copyright goods. The initiatives and activities being undertaken to enforce intellectual property rights by different multilateral fora and agencies can benefit from greater coherence. Developing countries are increasingly redirecting resources to strengthen the enforcement of intellectual property rights at a time when global investment in areas of poverty, hunger, health, and education is less than half of what is needed to reach the Millennium Development Goals. Countries that adopt TRIP-plus enforcement obligations may be renouncing sovereign authority to adopt innovation and intellectual property policies suited to their level of development. They may also forego important flexibilities afforded under the TRIPS Agreement that accommodate differences among national legal systems and levels of development. In the case where such obligations are acquired through FTAs, they may also suffer trade and other economic sanctions due to their potential inability to comply with new obligations that may be excessively intrusive and restrictive. There is a lack of reliable information and objective data as well as of harmonized definitions that would allow proper quantification of the magnitude and impact of international trade in counterfeit and pirated foods and an adequate definition of the problems it poses. The continued exchange of national information, experience and practice aimed at tackling counterfeiting and piracy is positive and desirable as a means of acquiring a better understanding of the problems and building common agendas. Current sharing of experience should be broadened to include the use of enforcement measures to ensure the exercise of limitations on and exceptions to intellectual property rights and to prevent abuse of intellectual property rights; the use of constitution law; and analysis of related national case law.