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WIPO-WTO RELATIONS AND THE FUTURE OF GLOBAL INTELLECTUAL PROPERTY NORMS*

  • Ruth L. Okediji

Abstract

The World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) has been the focus of intense scholarly debate regarding the effects of IP protection on the development interests of the global South. Far less attention has been directed at the organizational framework in which future IP norms should be developed. The governing assumption has been that the norm-setting role of the World Intellectual Property Organization (WIPO) remains unchanged notwithstanding the primacy of the WTO as an Organization with explicit mandate for global IP regulation.

In this Article, I argue that the WTO, in a hierarchical division of labor with WIPO, should be promoted as the locus of IP norm-setting, particularly with respect to those norms that affect the regulation and supply of global public goods. IP norm-setting in the WTO is not without risks. Nonetheless, an organizational culture in which IP protection is one of many tools to accomplish defined welfare goals, rather than the raison d'être of the organization's existence, may force open important institutional space in which future IP norms consistent both with the interests of less developed countries and the ideals of mature IP systems, can be meaningfully negotiated. At a minimum, a hierarchical relationship could facilitate inter-institutional competition between the WTO and WIPO, generating additional welfare gains for the international community in the form of greater transparency in the processes of IP norm-setting, improvements in the democratic deficit inherent in international organizations generally, as well as systemic gains from enhanced accountability in the global management of IP.

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* © R.L. Okediji, 2009.

** William L. Prosser Professor of Law & Solly Robins Distinguished Research Fellow, University of Minnesota Law School. I am grateful to Mary Rumsey and Tomas Felcman for extraordinary research assistance; to the Board of Editors of the Yearbook, for their patience, support and comments on an initial draft. Participants at International Law Workshops at Michigan Law School and Vanderbilt School of Law, and a faculty workshop at Duke Law School provided helpful observations and critique; I also had the benefit of comments from James Bacchus, Antony Taubman and Michael Tonry. Any remaining shortcomings are, of course, my own. This article is dedicated to my father, Prof. Aaron T. Gana, a student and scholar of international relations for almost fifty years, who, with great virtue, dedicated his life to public service and promoting the high ideals of the rule of law in service of human welfare – in loving memory.

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WIPO-WTO RELATIONS AND THE FUTURE OF GLOBAL INTELLECTUAL PROPERTY NORMS*

  • Ruth L. Okediji

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