Intellectual Property Rulemaking in the Global Capitalist Economy

Peter K. Yu, Texas A&M University School of Law


In the global capitalist economy, people, goods, services, capital, culture, and ideas flow through borders with ease, and countries interact with each other in a complex, interdependent economic relationship. As information and knowledge become increasingly commodified, high-technology goods and services have become a staple of both domestic and crossborder trade. In many developed and middle-income developing countries, information- and entertainment-based industries now constitute some of the most highly important and fastest growing sectors in the national economy. The protection of intellectual property rights has therefore moved from a meager domestic or bilateral issue to the forefront of the international trade debate.

The chapter begins by tracing the international enclosure movement from the creation of Berne and Paris Conventions to the establishment of the TRIPs Agreement and the recent bilateral and regional trade agreements. It explains how the one-size-fits-all standards required by the latter agreements have drastically reduced the policy space available to less developed countries. The chapter then examines the resistance efforts put up by less developed countries during the Doha Development Round of Trade Negotiations (―Doha Round‖). It discusses, in particular, the Doha Declaration on the TRIPS Agreement and Public Health (―Doha Declaration‖), the Decision on the Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health (―August 30 Decision‖), and the proposed article 31 bis of the TRIPs Agreement. The chapter concludes with a brief discussion of the root causes of the international enclosure movement and offers suggestions on how countries can reform the international intellectual property system— both to restore its balance and to reclaim their lost policy space.