International Enclosure, the Regime Complex, and Intellectual Property Schizophrenia

Abstract

The year 2005 marked the tenth anniversary of the Agreement on Trade-Related Aspects of Intellectual Property Rights. Since it entered into effect on January 1, 1995, the Agreement has impacted a wide variety of areas, including agriculture, health, the environment, education, culture, competition, free speech, democracy, and the rule of law. Today, intellectual property protection has been considered a major issue in both the domestic and international policy debates, and policymakers have actively explored intellectual property issues in many different international regimes. These regimes range from public health to human rights and from biological diversity to information and communications. As an introduction to the International Intellectual Property Regime Complex Symposium, this Essay advances three conceptual notions that seek to illuminate the growing complexity of the current international intellectual property regime. The Essay begins by outlining the international enclosure movement, in which the policy space of countries, usually those in the less developed world, is increasingly enclosed in the name of international harmonization. It then examines the concept of the international intellectual property regime complex, a term I coined to denote a larger conglomerate regime that includes not only the traditional area of intellectual property laws and policies, but also the overlapping areas in related regimes or fora. The Essay concludes by focusing on the rather schizophrenic positions taken by policymakers in response to conflicts and competing interests within a country.

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