From Transnational Intellectual Property Cooperation to Global Knowledge Governance

The Google Books Library Project is one of the most prominent ventures in today’s knowledge-based economy which exemplifies the lack of a widely accepted system of global governance and cooperation. Google’s endeavor to scan and make searchable all known existing 129,864,880 books by 2020 has met strong opposition from a wide array of authors, academics, and the publishing industry. Even though critics of Google’s digitization projects have primarily focused on aspects of copyright infringement, the wider significance of such opposition lies in the attempt to prevent the global monopolization of knowledge by a limited number of corporate players. Such attempts acknowledge the unprecedented achievements in transnational intellectual property (IP) regulation of the 19th and 20th centuries while exposing the urgent need for global governance solutions in the information society. It is exactly such global governance solutions that will eventually determine the difference between domination and participation as well as prosperity and poverty in the knowledge economy of the 21st century.

One of the most notable achievements in global cooperation in the emerging knowledge economy of the 19th and 20th century is the establishment of transnational IP regulation and its governance by an overwhelming majority of the 192 members of the United Nations (UN) [1]. By 2011, 184 contracting parties to the World Intellectual Property Organization (WIPO) Convention [2] 173 contracting parties to the Paris Convention [3], 164 signatories of the Berne Convention [4] and 153 signatories of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [5] have committed themselves to transnational IP standards and their enforcement under the auspices of global governance institutions – such as the World Trade Organization (WTO). A growing multitude of bilateral, plurilateral, and multilateral IP treaties testifies further to the continuing trend towards harmonization of IP standards and transnational IP cooperation. International IP policy has achieved governance over the entirety of human creations and their protection through common types of intellectual property rights – e.g. patents, copyrights, and trademarks – as well as through novel sui generic frameworks, such as the protection of biodiversity and of traditional knowledge of indigenous communities [6].

Yet, rather than the existence of transnational IP cooperation as such, it is the impact that it has had on the awareness about global governance in societies worldwide and the inclusion of public, private, and civil society sectors into the larger global governance debate which renders it one of the most notable achievements in global cooperation. Such global governance awareness is, for instance, evidenced in the foundation of the Honey Bee Network [7] in the late 1980s, which has led to the bottom-up empowerment of creative grassroots innovators. An even more visible sign of global governance has been the emergence of global IP and knowledge alliances in the framework of the WTO ministerial conferences – such as the G90 plus developing countries – with the aim of shaping global governance.

However, these unprecedented achievements in global governance generally and, more specifically, transnational IP cooperation have not remained without deficiencies, thereby necessitating the implementation of the following global governance arrangements in the next 5-10 years:

First, international IP policy must move from IP cooperation informed largely by narrow corporate and national interests to global governance that adequately balances private and public interest in knowledge creation and distribution. In the past, national actors with a stake in global governance have, with their policy and regulatory initiatives, reached out to those fora that had best served their particular interests – ranging from the UN, WIPO, the WTO to regional fora, such as the European Patent Organization (EPO). In addition, it has not only been Google but a range of private actors that have created their own fora for knowledge governance, such as in the area of standard-setting organizations (SSO). Thereby, global governance and global cooperation of IP and knowledge in the public interest has substantially been weakened. In consequence, future initiatives must integrate hitherto dispersed initiatives into a global IP governance initiative that provides for consistent management, cohesive IP policies and guidelines, as well as due processes, decision-rights, and enforcement powers.

Second, global governance arrangements must reach beyond the limited concept of intellectual property to knowledge as such and, thus, address global knowledge governance. Knowledge flows and the collective use of knowledge – as a commons – requires global governance in times when the generation, accumulation, adoption, and diffusion of, and the access to knowledge determine an individual’s welfare and a country’s performance in the economy. However, global knowledge governance must go beyond governance in IP institutions; it must govern all supporting pillars of today’s knowledge economy, such as innovation systems at large, education and human resources, and information and communication technologies.

Third, global IP and knowledge governance arrangements must be implemented in the framework of larger global Internet governance. The rise of a digital Internet economy has eradicated territorial boundaries for IP distribution and knowledge-sharing. Corporate and private actors, such as Google, have comprehensively adapted their business models to this eradication, while global governance initiatives are still substantially lagging behind in the provision of frameworks for the digitized economy. The relevant institutions of governance, ranging from institutions governing private international law, such as the Hague Conference on Private International Law, to WIPO and the WTO as well as national institutions of governance, such as the American Law Institute (ALI) must join together to build a workable system of global governance for the provision of IP and knowledge in the global public interest.

Global governance, however, is doomed to fail when notions of governance are fluid and susceptible to customary dynamics, where notions of globalism, democracy, and individual rights are divergently interpreted, where notions of fairness, justice, participation, and welfare are irreconcilable, and where limited national and corporate interests dominate. Therefore, the establishment of the above suggested arrangements for global governance, cooperation, and solidarity requires a strong political will within and beyond territorial boundaries to address today’s deficiencies in global governance. With transnational IP cooperation having triggered the inclusion of societies worldwide into the larger global governance debate about IP and knowledge, the foundation has been laid for future achievements in global governance.

[1] See http://www.un.org/geninfo/faq/faq/faq.html (accessed 14 February 2011).
[2] 1967, 21 U.S.T. 1749, 828 U.N.T.S. 3.
[3] 21 U.S.T. 1583, 828 U.N.T.S. 30.
[4] See Treaty Doc. No. 99-27 (1986), 828 U.N.T.S. 222.
[5] Adopted in Marrakesh on April 15, 1994, 33 ILM 81 (1994).
[6] See e.g. Convention on Biological Diversity, available at: http://www.cbd.int/ (accessed 14 February 2011).

Andrea Wechsler, Research Fellow, Max Planck Institute for Intellectual Property and Competition Law, Munich