The impacts of trade‐related international intellectual property rights on domestic legislative debates: Evidence from the 104th to the 112th U.S. Congresses

• Author: João Paulo Hernandes Teodoro
• DOI: http://doi.org/10.1111/jwip.12159
• Published date: 01 July 2020
• Date: 01 July 2020

J World Intellect Prop. 2020;23:430–453.wileyonlinelibrary.com/journal/jwip430

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© 2020 John Wiley & Sons Ltd

DOI: 10.1111/jwip.12159

ORIGINAL ARTICLE

The impacts of trade‐related international

intellectual property rights on domestic

legislative debates: Evidence from the

104th to the 112th U.S. Congresses

João Paulo Hernandes Teodoro

Institute of International Relations, University

of São Paulo, São Paulo, Brazil

Correspondence

João Paulo Hernandes Teodoro, Instituto de

Relações Internacionais, Universidade de São

Paulo, Secretaria de Pós‐graduação e Pesquisa,

Av. Prof. Lúcio Martins Rodrigues, s/n, travessas

4e5‐Cidade Universitária, São Paulo 05508‐

020, Brazil.

Email: jphteodoro@aya.yale.edu

Funding information

Coordenação de Aperfeiçoamento de Pessoal

de Nível Superior; Fox International Fellowship

at Yale

Abstract

Despite the large body of literature on the connection

between intellectual property rights (IPRs) and trade at

the international level, less attention has been paid to the

impacts of such rights included in preferential trade

agreements (PTAs) on domestic legislative debates. This

article contributes to filling this gap by analyzing debates

in the U.S. legislature where the IPRs included in PTAs

were referred to. We consider the 1995–2012 period

(104th to 112th Congresses). We also analyze trade laws

enacted by Congress over the period. The data suggest

that the IPRs negotiated with foreign partners affect

Congress voting on the concession of trade promotion

authority to the president. They may also trigger urges

for adjustments to trade agreements and be tapped into

by members of Congress to advocate for changes to

domestic patent legislation. The importance placed on

IPRs by members of Congress was not consistent over

time and across parties. These results suggest that the-

oretical explanations of the U.S. trade policy must ac-

count for the diversity of views at the domestic level and

for how such often divergent sentiments translate into

policies, as framed by the domestic laws and institutions

in place.

KEYWORDS

Congress, intellectual property, trade, United States

1|IMPLEMENTING INTERNATIONAL INTELLECTUAL PROPERTY

RIGHTS (IPRS) IN A TWO‐LEVEL WORLD

The mutual interactions between the national and the international levels have increasingly drawn the attention of

political scientists and International Relations scholars. Since at the least the late 1980s, the assumption that states

at the international level can be described as rational, unitary actors—or billiard balls, to recall Stephen Waltz's

analogy—has been challenged by both theoretical and empirical works

1

.

Robert Putnam's influential article on the two‐level games (Putnam, 1988) emphasizes that domestic politics

are fundamental for international relations because agreements negotiated by diplomats can only be implemented

if politicians at the domestic level agree with them—that is, international cooperation is only achieved when

different countries' interests overlap. According to the theoretical perspective developed by Putnam (1988) and

others, states' international policies are not guided by national interests rationally defined a priori by states'

bureaucracies. Rather, they are heavily dependent on the preferences of domestic actors, who strive to achieve

power and influence public policies as framed by laws and institutions such as legislatures and executive branches

(Bueno de Mesquita, 2010; Goldsmith & Posner, 2005; Milner, 1997). Therefore, the actions carried out by states

at the international level are not necessarily those that maximize the public good at home (Goldsmith &

Posner, 2005).

When negotiators at the international level fear that agreements will not be ratified—either at home or at

counterparts' domestic level—they may abort negotiations altogether (Putnam, 1988). To facilitate negotiations

and avoid stalemates, states may also demand counterparts to have a defined set of domestically acceptable

proposals before coming to the negotiating table. This demand can take the form of a previous agreement between

domestic decision‐makers, whereby amenders or ratifiers relinquish control to the executive (Milner, 1997).

In the same vein, international negotiators can make concessions at home and use side‐payments to secure the

implementation of international agreements (Goldsmith & Posner, 2005; Lantis, 2005; Milner, 1997). Side‐

payments may refer to corruption, but the concept also encompasses other kinds of bargains concerning public

decision‐makers and interest groups: “[they] include such practices as log‐rolling, vote trading, compromise, con-

cessions, reciprocity, bribes, and issue linkage. […] an actor gives up value on one issue of lesser importance in order

to gain value from others on an issue of greater importance”(Milner, 1997, p. 109).

The effectiveness of such strategies depends on the quality of information held by each counterpart in an

international negotiation. In this regard, Putnam (1988) asserts that “Uncertainty about the size of a win‐set [the

range of acceptable outcomes] can be both a bargaining device and a stumbling block in two‐level negotiations [i.e.

in negotiations regarding the national and international levels at the same time]”(Putnam, 1988, p. 452). Nego-

tiators can use win‐sets to obtain better deals by stating that an agreement will not be accepted at home, no matter

how accurate this assertion might be. They can also push foreign negotiators when they estimate that more

favorable concessions can be made.

As for the stumbling‐block effect, Milner (1997) argues that domestic actors such as legislatures will often veto

policies they lack information about, that is, uncertainty may negatively affect cooperation. In this sense, Epstein

and O'Halloran (1995) argue that federal agencies, including those responsible for negotiating with foreign

countries, are usually better informed about the details of their policy areas, which may make it difficult for

legislators to effectively oversee their actions.

Interest groups may mitigate these asymmetries by providing information to public powers. In this sense,

interest groups will only be able to influence policies if their interests do not conflict with decision‐makers'

preferences, and if these actors both trust and find it useful to rely on information provided by interest groups

(Epstein & O'Halloran, 1995; Milner, 1997). If competing interest groups support different views, public powers'

agents need to weigh them up and choose the ones they will rely on (Epstein & O'Halloran, 1995). “In this role they

[interest groups] do not directly shape the political actors' preferences but rather act as signalers, alerting political

actors to the consequences of various policies, in this case international cooperative ones”(Milner, 1997, p. 60).

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