2 Climate L. 1 (2011)

handle is hein.journals/climatla2 and id is 1 raw text is: Climate Law 2 (2011) 1-17                                                             1
DOI 10.3233/CL-2011-023
IOS Press
Bargaining over the climate: Lessons from
intellectual property negotiations
Peter Drahos*
Abstract. Does the evolution of the intellectual property regime hold any lessons for the climate change
regime? The paper argues that the architecture of the intellectual property regime recognizes the com-
plexity of free-riding behaviour and divides the problem amongst a number of treaties. The integration
of intellectual property trade standards into the trade regime provides plaintiff states with a way to inflict
both political and economic costs on free riders. Perhaps the most important lesson relates to the way
in which a highly coordinated international business network was able to shift intellectual property into
the multilateral trade regime and obtain standards most countries at the time did not really want because
they were net intellectual property importers.
I. INTRODUCTION
States have been negotiating intellectual property rights for a long time. Some multilateral
intellectual property treaties date back to the nineteenth century (see below). By comparison
the climate change regime is a young regime. Both regimes create norms around free-riding
behaviour. In both cases, the free-riding behaviour is global, meaning that most states either have
been or are free riders. Developed countries are largely responsible for the current concentrations
of greenhouse gases in the atmosphere, but it is also clear that large developing countries like
China and India will be responsible for much of the increase in energy-related CO2 emissions.1
Developed countries like Switzerland, which today support high-standard intellectual property
rights, were in the past free riders on knowledge assets.2
The purpose of this article is to consider whether there are lessons we can draw from the long
evolution of the intellectual property regime that might help states to negotiate significant new
* Regulatory Institutions Network, Australian National University and Centre for Commercial Law Studies,
Queen Mary, London University. E-mail: <peter.drahos@anu.edu.au>. I would like to thank Alexander Zahar and
an anonymous reviewer for their perceptive comments on an earlier draft.
1 World Energy Outlook 2007: China and India Insights, International Energy Agency, at 196 (2007).
2 Eric Schiff, Industrialization without National Patents 85 (1971).

1878-6553/11/$27.50 @ 2011 - IOS Press and the authors. All rights reserved

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