Policy Space for Development in the WTO and Beyond: The Case of Intellectual Property Rights

Global governance in intellectual property (IP) has changed dramatically in the last two decades, and these changes have profound – and worrying – implications for late development. What was once principally an instrument of national policy is now increasingly subject to international disciplines, as the world moves ever-closer to harmonization in the area of IP management. But moving toward harmonization and achieving harmonization are different matters, and it is essential to keep in mind that the former and not the latter describes contemporary arrangements: the trend is toward a reduction in policy space, a feature that many scholars and activists point to with great concern (Gallagher, 2005), but the outcome remains one where countries retain space for autonomous IP management. This paper examines the relationship between IP and development, presenting a framework for assessing IP regimes both cross-nationally and over time. It is then shown how the trend toward harmonization places new and significant restrictions on developing countries’ opportunities for policy innovation in IP management. The implications of harmonization for a range of issues are then considered, including late industrialization, promotion of public health, and protection of biodiversity. The paper shows that the new regulations are most accentuated at the regional and bilateral level. Thus, for all of the concerns that academics and policy analysts have legitimately and rightly expressed over TRIPS, the biggest threat to using IP policy as tool for realizing development objectives comes not so much from the World Trade Organization (WTO) as from bilateral and regional Preferential Trade Agreements (PTAs) between developed and developing countries. I demonstrate this by examining various aspects of IP policy: over and over, we see that countries that are parties to such PTAs have significantly less autonomy in their management of IP. In the conclusion, a set of policy recommendations are put forth, at both regional and multilateral levels, for restoring countries’ ability to use IP as a tool for economic development. The policy challenges are twofold: developing countries must utilize and exploit the remaining opportunities under TRIPS to use IP management for national development purposes, and developing countries must be careful to avoid bargaining away their remaining rights under PTAs.