Balancing Acts: Antitrust for Economic Development

• Author: Ruth L. Okediji
• Published date: 01 December 2003
• Date: 01 December 2003
• DOI: http://doi.org/10.1177/0003603X0304800403
• Subject Matter: Symposium: Global Antitrust Law and PolicyPart V: Competition Policy and Intellectual Property around the Globe

The Antitrust BulletinlWinter 2003

Balancing

acts:

antitrust

for

economic

development

BY RUTH L. OKEDIJI*

1. One more round: international intellectual property

and international antitrust

921

The TRIPS Agreement' and the DSU2provide minimum substantive

standards for the protection of intellectual property rights and an

enforcement mechanism to secure the benefits

of

such protection,

respectively. This combination requires policy makers to consider

carefully how best to accommodate welfare goals associated with

intellectual property protection

and

antitrust intervention in the

* Edith Kinney Gaylord Presidential Professor

of

Law, University

of

Oklahoma College of Law, Norman, Oklahoma.

AUTHOR'S NOTE: This comment is a response to the contributions

of

Pro-

fessor Ullrich

and

Professor Takigawa to the Global Antitrust Law and

Policy Conference in honor

of

Dean E. Thomas Sullivan, University

of

Minnesota School

of

Law, September

20-21.2002.

See Agreement on Trade-Related Aspects

of

Intellectual Property

Rights, Apr. 15, 1994,

Marrakesh

Agreement

Establishing

the

World

Trade Organization, Annex

lC,

33 I.L.M. 81 (1994) {hereinafter TRIPS

Agreement].

See

Understanding

on

Rules

and

Procedures

Governing

the

Settlement of Disputes, Apr. 15, 1994, Agreement Establishing the World

Trade Organization, Annex

2,33

I.L.M. at 1226 (1994) [hereinafter DSU].

© 2004 by Federal Legal Publications, Inc.

922

The antitrust bulletin

context

of

international

economic

regulation. Despite different

policies

that

have historically distinguished national intellectual

property systems,' the ongoing harmonization process in the field of

intellectual property' is likely to expand the scope of uniform rules for

information

products

that

will

bind

all

countries

equally.

Harmonization simultaneously reduces sovereign discretion to make

unilateral changes in areas where countries have reached a multilateral

Scholars

now

commonly

attribute the

convergence

of

national

principles and norms for the protection of intellectual property to the suc-

cessful negotiation

of

the TRIPS Agreement. The process, however, began

much earlier with the negotiation

of

the principal treaties on the interna-

tional protection

of

intellectual property rights. See, e.g., Paris Convention

for the Protection

of

Industrial Property, Mar. 20, 1883, last revised at

Stockholm, July 14,

1967,21

U.S.T.

1538,828

U.N.T.S. 305; Berne Con-

vention for the Protection

of

Literary and Artistic Works, last revised at

Paris, July 24, 1971, S. Treaty Doc. No. 99-27, 99th

Congo

2d Sess. 37

(1986),828

U.N.T.S. 221. The TRIPS Agreement incorporates and further

builds on these treaties.

For

acomprehensive examination

of

the provi-

sions

of

the TRIPS Agreement, see J. H. Reichman, Universal Minimum

Standards

of

Intellectual Property Protection Under the TRIPS Compo-

nent

of

the WTO Agreement, in

INTELLECTUAL

PROPERTY

AND

INTERNATIONAL

TRADE:

THE

TRIPs

AGREEMENT

21 (Carlos M. Correa &Abdulqawi A.

Yusuf eds., 1998). In addition to its harmonized substantive provisions,

the TRIPS Agreement harmonized enforcement procedures and remedies

available to owners in each member country. See TRIPS Agreement, arts.

41-61.

Finally, both the substantive and enforcement obligations are sub-

ject

to

the

dispute resolution system

of

the World Trade Organization

(WTO). See id., arts.

63-64.

See also, DSU art. 1, supra note 2. Manda-

tory, binding dispute settlement further increases the development of a

uniform set

of

rules and norms for global intellectual property rights. But

see Ruth Okediji, TRIPs Dispute Settlement

and

the Sources

of

(Interna-

tional)

Copyright

Law, 49 J.

COPYRIGHT

SOC'Y

585 (2001) (expressing

skepticism that countries will sufficiently utilize the WTO DSU to generate

arobust set

of

uniform rules governing international copyright protection).

4Two treaties addressing copyright protection in the digital context

were concluded shortly after the TRIPS Agreement. See World Intellectual

Property Organization Treaty, Dec. 20, 1996, S. Treaty Doc. No. 105-17,

36 I.L.M. 65 [hereinafter WCT]; World Intellectual Property Organization

Performances and Phonograms Treaty, Dec. 20, 1996, S. Treaty Doc. No.

105-17, 36 I.L.M. 76 [hereinafter WPPT]. In the patent area, the Patent