Discussion Issues – Concurrent Session on Intellectual Property
Frederick M. Abbott, Chicago-Kent College of Law

1. Intellectual Property Law is Historical Vector for Global Harmonization Efforts

2. WTO TRIPS Agreement as Intrusion into National and Regional Regulatory Spheres
   1. First WTO effort at positive harmonization of law and enforcement
   2. IP laws are component of industrial and social policy – affecting sensitive domestic concerns

3. TRIPS Agreement Overlaid U.S./EU/Japan IP Standards on Developing and Newly-Industrializing Countries – An Upward Migration of National Rules
   1. Forced nature of TRIPS negotiations generated resistance
   2. Developing countries have sought to rebalance agreement – so far without success
   3. Aggressive U.S. efforts to over-enforce TRIPS in public health context has aggravated difficult political economy
   4. OECD agenda has largely shifted to World Intellectual Property Organization
   5. TRIPS interface with Convention on Biological Diversity

4. TRIPS Agreement Acts as Constraint on U.S./EU/Japan IP Policy – A Reverse Migration of Multilateral Rules
   1. Napster as illustration for potential limitations on U.S. discretion in fair use context
   2. Public health policy faces potential TRIPS constraints

5. Consider Factors that May Produce More Balance Multilateral Legislation
   1. Greater parliamentary involvement in negotiation phase
   2. Greater public participation
   3. Evaluate WIPO Internet Domain Name Process as model

6. Is TRIPS a Bridge Too Far? Challenges to the Reciprocal Negotiations Framework