Session IIA
Susana Borrás (Roskilde University, Denmark)
borras@ruc.dk
Governing the European Union’s Intellectual Property Rights’ Regime:
From market failures to governance failures?
Abstract
Since the early 1990s the European Union has engaged in a process of rapid harmonization
and unification of intellectual property rights regulations among its member states. Today the
EU holds a bunch of laws in the fields of copyrights, trademarks, plant varieties, and is about
to pass regulations creating the EU-wide Community patent and utility model. This regulatory
thrust at EU level responds to the political will to low trade barriers among member states, to
low the transaction costs and uncertainties involved in obtaining and exercising such rights,
and more generally, to foster innovation and competitiveness in the single market. All of them
very laudable objectives.
The aim of this paper is to raise the questions concerning the governance of the new IPR
regime in the EU. The creation of these legal figures at EU level is not the end of the road.
Quite the contrary, it is the beginning of the active EU involvement in these matters (in the
so-called “positive integration” terms). In particular, this paper will concentrate on the issue
of the potential “governance failures” of the newly established EU regime. This notion will be
defined in continuation to the discussions about “market failures” and “systemic failures”, and
will delve from the theoretical discussions about “governance” that are taking place within the
discipline of political science in general, and of European studies in particular.
The paper will proceed as follows. First, it will give a short account of the transformations of
the EU IPR regime, both in terms of content and form, showing how rapid and in which way
has the Europeanization of these rights taken place. Second, the paper will link these
transformations to the issue of system of innovation perspective. The systemic approach will
allow understanding the essentially constitutive nature of these rights in terms of a European
system of innovation, and will raise some matters related to the formal and informal role of
IPRs in the system. After that, the paper will move on to discuss the issue of “governance
failure”. To do so, it will first introduce briefly the well known neo-classical approach to
“market failure” discussing it in relation to the relatively new definition of “systemic
failures”. After that, a definition of “governance failures” will be developed on the cross field
of political science theory and European studies. It will be argued that the concept
“governance failures” allows to examine some specific situations, namely, the (under and
over-) protective effects of IPRs, the formal aspects of IPRs regulation (rigidity/flexibility and
mechanisms of adaptation), the legitimacy aspect of the IPR regime, and the questions related
to the delegation of power (principal-agent relationship). The last part of the paper will be
devoted to the design of an analytical strategy, that will allow to address the question whether
there are potential and identifiable “governance failures” in the current rapid establishment of
the EU IPR regime, beyond (but related to) the “systemic failures” currently identified by
economists.
Start
EPIP
Munich Conference
- Schedule, Papers
and Slides
- Contact
