Collective Management of TRIPS: APEC, New Regionalism and Intellectual Property

Abstract

The Asia-Pacific Economic Cooperation forum (APEC) took up intellectual property (IP) issues in 1995, quite late in the evolution of its program of regional economic cooperation, and even then with a measure of caution and uncertainty. The way APEC has handled cooperation on IP issues shows how its priorities and modalities have shifted expediently to respond to political and economic developments, and exemplifies two broad themes in APEC’s evolution: . first, the question of scope and objectives – whether APEC is to deliver ‘hard’ trade liberalisation outcomes of lowering or eliminating tariff barriers, or is to concentrate on softer, less precise outcomes in the field of economic cooperation, trade facilitation and regulatory and administrative convergence, conceived in a broader, less legalistic and more collaborative sense, including on areas traditionally reserved for domestic regulation; and . second, the changeable relationship of the regional process with multilateral trade negotiations, both the Uruguay Round negotiations leading up to the World Trade Organization (WTO) package of trade agreements, and subsequent WTO negotiations –APEC has been variously viewed as a defensive hedge against multilateral failure, a decisive shift away from multilateralism to regionalism, a regional caucus on multilateral issues, a preliminary deal-making mechanism to facilitate multilateral outcomes, and other less determinate forms of regional economic integration, with suggestions even that is antithetical to free trade and provides implicit support for an Asian brand of mercantilism. The very informality, flexibility and even ambivalence that make possible this range of perceptions of APEC – through such consciously pliable constructs as ‘open regionalism,’ ‘concerted unilateralism,’ ‘early voluntary sectoral liberalisation,’ and ‘pathfinding initiatives,’ and a culture of valuing consensus and soft policy convergence over hard normative outcomes - have at once been viewed as the distinctive, defining strength of APEC and as its abiding weakness. APEC is either an innovative experiment in ‘new regionalism’ or as an inadequate substitute for tough, binding liberalisation commitments. Given that APEC is at any time a consensus expression of the will and preoccupations of its member economies, the deliberate (almost constitutional) eschewal of institutional compliance mechanisms (apart from soft means such as peer pressure and normative lock-in), the need to react to a shifting multilateral climate, and the economic diversity and geographical extent of APEC, this uncertainty or changeability of focus and of ambition is inevitable. Yet this leaves open a debate as to the core nature of the APEC endeavour, and the suspicion that its function is to forge an Asia-Pacific regional identity as an achievement of value in itself – the process itself being the outcome. This applies to broader systemic issues, but especially to the continuing uncertain position of intellectual property (IP) issues in international trade and economic relations. Despite the incorporation of IP standards within trade rules through the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), IP remains a contested element of the multilateral trade law system, and an uncertain component of regional economic cooperation. Rreflectinged this indefinite position of IP rules in trade and economic relationsambivalence, APEC’s work on IP issues has been less about compliance with formal obligations as an end in itself, and more about exploring cooperative approaches to implementing international standards for mutual benefit. In this context, TRIPS serves more as a framework for regional cooperation on IP – or a lexicon for policy dialogue – aimed at achieving regional goals for economic and regulatory cooperation, rather than as an adversarial compliance-oriented legal instrument born of trade tensions: regional cooperation as a tentative step towards the ‘collective management’ of TRIPS. The collective management of TRIPS, consciously expressed as an ideal, would combine a collaborative, mutually supportive approach to the articulation of domestic IP policies within the TRIPS framework for optimal economic and social outcomes and the enhancement of regional economic relations, with enforcement of trading partners’ IPRs undertaken collaboratively as a performance of positive comity, rather than as a grudging concession in a zero-sum deal struck between atomistic protagonists.