The International Environment
In addition to the characteristics of the specific accord and the specific activity involved, the international environment surrounding the specific activity and accord should also be examined. According to the comprehensive model of compliance proposed in Chap. 2, there are several elements of the international environment that may influence compliance with the specific international obligations. These include: major international conferences, worldwide media and public opinion, the presence of international non-governmental organisations (NGOs), the number of parties adhering to the accord and other international organisations including international financial organisations. As the model is not restricted to intellectual property protection, some of these factors may be more relevant than others. Thus, the international environment will be considered under three main criteria: the role of international organisations, worldwide media and public opinion and the number of parties adhering to the TRIPS Agreement.
International organisations active in the intellectual property field may include both intergovernmental organisations and industry lobby groups. The role that these organisations may play mostly consists of monitoring and pressure. Apart from the WTO, WIPO is arguably the most important international organisation operating in the field of intellectual property rights and WIPO’s role in working with the Council of TRIPS to improve TRIPS compliance and assist developing countries to build effective IP systems has been discussed above. Although WIPO does play an important role in supporting the TRIPS Agreement, the organisation is also criticised for lacking any effective means of enforcing IP Agreements which it is charged with administering. However, there are also a host of other international bodies which may play a part in intellectual property protection. For example, the International Intellectual Property Alliance (IIPA) is a coalition representing US copyright- based industries in a number of sectors such as software, music, film and publishing (International Intellectual Property Alliance 2015). The IIPA has a large part to play in the Annual Special 301 Report issued by the United States Trade Representative (USTR); the IIPA issues specific recommendations for each country which can form a significant part of the USTR’s final report. The Intellectual Property Owners Association (IPO) is another US-based organisation lobbying for higher levels of IP protection, with membership open to
IP rights-holders predominantly in the US. There are also a number of think tanks worldwide which contribute to the IP debate, such as the IP Institute, a London-based think tank focused on research into economic aspects of intellectual property. Despite the large number of international organisations which exist within the IP arena, their role in encouraging TRIPS compliance is minor. This is due to a number of reasons; not only do these international organisations not enjoy widespread public support, but as many of them are US-based, they may face the same feelings of resentment that MNCs do when pressuring for stronger IP protection.
Similarly, the influence of global public opinion is linked to the previous discussion of the limited role of MNCs and international organisations; as there is a lack of consensus in public opinion worldwide on the issue of IP protection, strong pressure to increase IP standards is at risk of being perceived as imposed by certain self-interested actors. Indeed, the global issue of IP protection could be seen as a delicate balancing act between weak IP protection to stimulate low-level economic growth and strong IP protection to protect innovative industries. This lack of global agreement on required IP standards differs from public opinion regarding other areas of international agreements; not everyone may benefit equally from improved IP protection. Therefore, without clear consensus in worldwide opinion, there is a lack of consistent media pressure towards TRIPS compliance.
As of 29 July 2016, the WTO has 164 members (World Trade Organisation 2016e). After the establishment of the WTO in 1995, developed countries were granted a one-year transition period, meaning they had to comply with TRIPS from 1 January 1996; developing countries and most transition economies were allowed a further period of four years until 1 January 2000 to comply, other than Articles 3, 4 and 5 dealing with general principles such as non-discrimination. In addition, least-developed countries had a longer transition period of 11 years within which to bring their IP system into compliance with the TRIPS Agreement. This was due to expire on 1 January 2006, but was extended to 1 January 2016 for pharmaceutical patents (Council for Trade-Related Aspects of Intellectual Property Rights 2002). Therefore, the majority of WTO members are now subject to the provisions of the TRIPS Agreement and must adhere to their commitments. As there are now such a large number of countries within the TRIPS system, it is possible that this may drive momentum towards greater overall compliance with the Agreement.
In general, the international environment does not play a critical role in the formulation and implementation of international intellectual property protection standards. In contrast to the field of international environmental protection, where changes in the international environment are considered to be the most important factor in the trend towards improved implementation and compliance in the 1980s and 1990s, the international environment is not as significant for intellectual property protection. The sole feature of the international environment that may encourage greater compliance with the TRIPS Agreement is the number of countries that are now WTO members and thus subject to the provisions of the TRIPS Agreement. In terms of momentum, there are few countries left out of this regime and thus individual members may not want to be seen as lagging behind. This effect may accelerate once all the transition periods applicable to least-developed countries have ended and when all countries then have to fully comply with the TRIPS Agreement.