Abstract

Intellectual property (IP) policymaking may be construed as a zero-sum trade-off between opposing policy interests, or as harnessing diffuse interests to enhance public welfare equitably. The contentious bargaining processes that yield legal texts encourages the former view. But IP norms may evolve into a more coherent policy instrument that does more than register a balance of interests that are accommodated to greater or lesser extent. The outcomes of international IP normsetting need not be read as a bare, zero-sum trade off between competing interests. The roots of international IP law lie in the realist assertion of national economic interests and in the zero-sum dynamic of trade negotiations. But its origins can and should be dissociated from its actual legal character and impact. IP law and policy ostensibly aim to promote production of public knowledge goods and overall public welfare, and offers more than a forum for bartering between certain rights (such as producer and user rights). A more coherent and productive reading would highlight the dynamic interplay of rights and interests for overall welfare. IP standard setting may be viewed as an utilitarian means of promoting public welfare, its legitimacy assessed in teleological terms or in terms of actual welfare delivered; or as dovetailing diverse rights and interests to produce a positive-sum accommodation. Naively taking it at its word, the WTO TRIPS Agreement seems to offer both: a 'balance' of rights and obligations and the mutual advantage of different interest groups; and overall social and economic welfare. Delivering on this promise requires a systematic jurisprudence of international IP law that would achieve the seemingly impossible goal of combining robustness in settling international disputes; legitimacy in terms of breadth of interests accommodated; and efficacy as a guide to welfare enhancing domestic lawmaking.