Turning Points in Multilateral Trade Negotiations on Intellectual Property Larry Crump Daniel Druckman Department of International Business George Mason University Griffith University Fairfax Virginia, U.S.A. Nathan Campus University of Southern Queensland Brisbane, Qld. 4111 Australia Qld. Australia (E-mail: [email protected]) (E-mail: [email protected]) Paper Presented at the 24 th International Association for Conflict Management Annual Conference Istanbul, Turkey 3 – 6 July 2011 Detailed chronologies of events that transpired during the discussion of intellectual property issues (TRIPS) in the GATT Uruguay Round and prior to and during the WTO Doha Ministerial are used to trace the unfolding negotiation processes through time. Of particular interest are departures from earlier trends in the chronologies: A departure is defined as a clear and self-evident change from earlier events or patterns in the form of an impactful decision taken by one or more parties. By coding the causes (precipitants) and effects (consequences) of the departures, we perform a turning points analysis: These three-part sequences reveal the triggers and impacts of departures during the extended TRIPS negotiation process. The analyses will allow a comparison of the patterns that unfolded during the two phases of TRIPS negotiations. This comparison will highlight the breakthroughs that occurred during the Uruguay Round and the crises that emerged later, prior to and during the Doha Ministerial. Improving the effectiveness of multilateral trade negotiations depends in part on understanding how critical turning points emerge. This article also has implications more generally for the way that comparative analyses of international negotiation are performed and for the effectiveness of negotiating in the multilateral context. Key words : Departures, GATT Uruguay round, intellectual property, international trade negotiation, turning points, WTO Doha Ministerial 1 Electronic copy available at: http://ssrn.com/abstract=1872135 Turning Points in Multilateral Trade Negotiations on Intellectual Property 1 The idea of a turning point has captured the imagination of theorists and researchers in a variety of social science fields. It has been a useful concept in studies conducted from a psychoanalytic perspective (e.g., Rothstein 1997), in analyses of communication in relationships (e.g., Hopper and Kent 1990) and divorce counseling (Graham 1997), in addiction research (Schulenberg et al. 1997), in a variety of analyses of child, adolescent, and life-span development (see Cohen 2008, for a review of these studies), and in a popular treatment of macro-level social change (see Gladwell 2000, on tipping points). The concept has been useful as well in studies of negotiation processes (Druckman and Olekalns 2011). These studies include cases of U.S. base rights talks (Druckman 1986), free trade (Tomlin 1989), international (Chasek 1997) and domestic (Hall 2008) environmental negotiations, nuclear arms control (Druckman et al. 1991), and the conflict between the Free Aceh Movement and the Republic of Indonesia (Leary 2004). Thirty-four cases concerning security, the environment, and trade were analyzed in Druckman’s (2001) comparative study of turning points. The analyses were guided by a three-part framework that consists of precipitants, departures, and consequences. This framework is applied to two negotiation cases over intellectual property (IP) in the present study. The analysis focuses on Trade Related Aspects of Intellectual Property Rights (TRIPS) examined in two negotiations. The first negotiation, referred to in this article as TRIPS I, was the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) conducted in the 1980s – 1990s. The second, referred to as TRIPS II, was negotiated prior to and during the World Trade Organization (WTO) Ministerial held in Doha Qatar in November 2001. It is interesting to note that these two cases sit on either side of a significant 1 The order of authorship is alphabetical. The authors contributed equally to this article. 2 Electronic copy available at: http://ssrn.com/abstract=1872135 turning point in multilateral trade policy, as the Uruguay Round represents the end of the GATT era and the Doha Ministerial is the first significant step of the emerging WTO era. A turning points analysis of negotiation has practical implications as well. Recognizing these critical moments during the process or knowing how to bring them about can spur progress toward agreements. Earlier studies of international negotiation showed that turning points contributed in important ways to outcomes (e.g., Druckman et al., 1991; Druckman, 2001). In the multilateral context, coalitions of parties often act to precipitate departures that move the process in the direction of agreements. These actions contribute to effectiveness and will be a focus of the analyses to follow. The next section provides background on the context of intellectual property rights (IPR) followed by a description of the respective negotiation processes. Then, we discuss how the three-part turning points framework guides coding of these processes: The coding traces connections between each aspect of the framework (precipitants, departures and consequences). Process-tracing results for each case are presented next followed by an interpretation of these findings. The article concludes with a section on lessons learned that paved the way for further research and for the practice of multilateral negotiation. TRIPS Cases GATT–IPR Context Intellectual property represents the interests of many commercial sectors of society but the field can generally be divided into copyright, trademarks and patents. Book publishers, writers and authors, and those involved in film, television, music, computer software and more each have an interest in a national and international regulatory framework that protect the rights of the creator through copyright protection. Design and fashion companies are the most prominent sectors concerned with trademarks although company names and logos also 3 Electronic copy available at: http://ssrn.com/abstract=1872135 qualify for trademark protection. But the “big money” in intellectual property (IP) is in the protection of inventions, via patents, sought by companies in technology, bio-technology, pharmaceuticals and related fields. This diversity of IP commercial activity served, for many years, as a barrier in building an international intellectual property rights (IPR) movement. The World Intellectual Property Organization (WIPO), based in Geneva and established in 1967, was not the first response to international IP concerns but it was the first serious attempt. However, WIPO appeared incapable of responding effectively to intellectual “piracy” and a host of other issues. It did not help that international IP challenges grew exponentially as the global economy slowly evolved. WIPOs inclusion in the democratically- grounded UN system in 1974 did not contribute to its ability to meet the expectations of IPR leaders, as some argued that WIPO had become aligned with developing countries. Negotiations involving Trade-Related Aspects of Intellectually Property Rights (TRIPS I) is an international story driven primarily by American corporate interests. Today TRIPS is an accepted part of the international trade policy infrastructure, but there was real doubt in the 1980s that IPR could be addressed in a trade policy framework, as it was a foreign and untested idea. Edmund Pratt, Pfizer CEO and John Opel, IBM Chair served on the US President’s Advisory Committee on Trade Negotiations (ACTN) and over a period of years assisted in shifting US government perceptions. United States Trade Representative (USTR) Clayton Yeutter created an Assistant USTR for International Investment and Intellectual Property in 1985 and then asked the private sector to communicate their concerns on IP issues. The private sector responded by presenting “A Trade-Based Approach for the International Copyright Protection for Computer Software” (by Jacques Gorlin a former ACTN economist). This document essentially became the initial blueprint for USTR IPR strategy. 4 GATT Negotiations: TRIPS I USTR Clayton Yeutter sought private sector assistance to get IPR on the upcoming Uruguay round multilateral trade negotiation agenda, which was sponsored by the General Agreement on Tariffs and Trade (GATT). Yeutter was especially concerned that European and Japanese trade officials appeared uninterested in including IPR in the GATT negotiations. Opel and Pratt responded by establishing the Intellectual Property Committee (IPC) in early 1986, which included 11–14 US corporate leaders (over a ten year period) from diverse industrial sectors. Representatives of the IPC immediately met with their colleagues in Europe including the Union of Industrial and Employers’ Confederations of Europe (UNICE) and the Japan Federation of Economic Organizations (Keidanren). Initial reactions to this US initiative were not warm but after much dialogue the IPC persuaded their counterparts to pressure their national governments to include IPR on the GATT agenda. These efforts were successful. IPR was included, via reference to trade in counterfeit goods, under the Trade Negotiations Committee (TNC) within the GATT Uruguay Round in September 1986. The US-based IPC worked closely with UNICE and Keidanren and over the following year produced a consensus document, which assisted the US, EU and Japan in presenting