Fragmentation in the international copyright law can be amended by WIPO

The IP-trade-A2K linkage triad brings some intriguing points into the domain of international copyright law. Whilst the imbroglio about the fragmentation between human rights law and trade law betrays a profound systematic puzzle among the invisible college, that same fragmentary structure featuring the relationship between IP law and human rights law merely manifests a prima facie phenomenon, since both legal fields had once existed for a long time without intervening with each other until the 1990s when it became a burgeoning theme both in practice and scholarly writings.114 Thus, the specious linkage triad has dramatized a linkage of key factors of a possible solution, as the A2K movement thoroughly diagnoses the contemporary international copyright law by channelling it to the IP-welfare recalibration: the crux of the reckless erosion of the welfare disposition of copyright through an unrelenting pursuit of trade interests still lies in the predatory nature of the current IP policy.115 As a matter of fact, the BIRPI,116 the predecessor of WIPO, began to be involved in the embryonic mobilization of A2K for the mandate of development led by the UN in the middle of the twentieth century.117 However, WIPO’s engagement in such initial development agenda was enmeshed in its deterministic cognizance that economic development merely flowed from strong IP protection and technology transfer, ignoring the overall investment environment and country- or sector-specific contingencies for IP enforcement.118 Thus, even under the auspices of the UN to establish a structure of the New International Economic Order to envision A2K for developing countries,119 the concomitant UN actions to concretize such policies and its entrustment of the mission to WIPO overwhelmingly dwelt on the legitimacy of and the reliance on the maintenance of a strong global IP system to bruit knowledge,120 which, albeit the underlying need to retool the global IP structure, only consecrated the philanthropic facilities of developed countries to provide assistance to developing countries.121 Yet, the significance of the new A2K movement and the WIPO Development Agenda as its progeny shall be reinterpreted in a globalized digital milieu. The IP-trade-A2K linkage triad as delineated above has conjured up the question on the legal fragmentation in a world of copyright multi-multilateralism: how to restructure and re-coordinate the normative and the institutional complexities deriving from the traditional and the new IP treaty law, the fledgling global trade regime, and the awakening call of human rights? The Development Agenda has outlined six broad aspects of future programmes in its forty-five recommendations,122 among which the normative and the institutional flexibilities under the backdrop of facilitating A2K in developing countries have been extensively addressed. These policy instruments shall serve as an antidote to the quandary of legal fragmentation in international copyright system. A2K in the cultural dimension of the R2D underscores the responsibility of the states and the international community to cooperate in facilitating development-friendlier normative and institutional mechanism in current knowledge governance. In the past decades, relentless efforts towards amelioration of A2K in the developing world have yielded certain fruits in international IP law fields, especially with regard to patent law.123 In tandem with the legal developments in the WTO, the WIPO Development Agenda symbolizes the reversionary trend to combine IP and social welfare in political coordination and collective actions for the purpose of optimizing the effects of IP on development in the majority of member states,124 thus nesting and carving out the blueprint for possible future reforms of international copyright law. Indeed, the normative pathologies and the institutional deficit embedded in the contemporary copyright doctrines as diagnosed above have manifested the need to invigorate WIPO’s current mandate in global knowledge governance with new ideologies of A2K particularly regarding the norm-setting and the institutional flexibilities. On the one hand, by exploring the normative flexibilities of the current copyright acquis to overcome the systematic market failure where traditional copyright regimes were predominant, global copyright norm-setting activities could encompass the interests of a hybrid spectrum of actors representing the wide public (including but not confined to developing countries) at large seeking access to benefit future creation. On the other hand, by endorsing the institutional flexibilities to alter the polarization of negotiating partners, developed countries would no longer play the charitable role of supplying global knowledge goods to developing countries as the passive beneficiaries of knowledge economy, but both state groups shall be submersed in reconstructing the global copyright milieu to mitigate its current predatory nature. Certainly, the fragmentary structure of the international copyright legal terrains is deeply entrenched in the fragmented structure of the international law characteristic of the “volatility of international law”,125 but its shadow can still serve to provide some clues in evaluations of possible future reforms of the international copyright law. The WIPO Development Agenda establishes the legal conjunction between the new liaison composed of the traditional international copyright law and the world trade law and the human rights law by imbibing the factor of A2K and calling for more coherence in normative and institutional cooperation. Thus, the WIPO Development Agenda shall not be treated simply as assuming an adjunct or peripheral status among the manifold WIPO documents relating to copyright and IP at large, but as a guideline reflexive of the central legal fragmentation.