2017 Articles

Session II: Rigidity in Global Intellectual Property Norms

Cox, Krista L.

International agreements can play a significant role in shaping domestic laws in the United States and in other countries. Obviously, multilateral treaties negotiated at the United Nations (“UN”) level create international obligations for parties to these agreements and thus set new global norms. The World Intellectual Property Organization (“WIPO”) administers several intellectual property related treaties and the World Trade Organization (“WTO”) administers perhaps the most well-known and significant international treaty, the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS Agreement”).

These UN-based treaties are negotiated in a system that operates on a consensus basis, meaning that all countries must agree to the language. Because of the large membership in these multilateral institutions and the consensus-based system, the language included in these treaties is generally at a very high level, flexible, and less prescriptive than what may be found in bilateral trade agreements or domestic laws. The 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, for example, sets minimum standards for limitations and exceptions for the creation and distribution of accessible works, including across borders.1 The historic agreement, the first WIPO treaty to focus on the rights of the user, like other WIPO treaties leaves plenty of space for countries to implement the agreement according to their own domestic context—for example, countries could have detailed requirements, may have a commercial availability provision, could restrict exports to other Marrakesh countries, or could broadly allow for the export of accessible works worldwide.2 This flexibility is critical in respecting the sovereignty and vastly different circumstances of countries in different regions, with different legal traditions, and of differing economic statuses.