Top-down versus Bottom-up Legal Convergence in Harmonisation: the Case of International Intellectual Property Law

There are two broad ways in which international law has been harmonised—top-down and bottom-up. While the former refers to the attempt to govern globally through multilateral, plurilateral or regional agreements or efforts, the latter encompasses the development of law from grassroot movements by civil society or a deliberate effort by individual courts to establish harmony on a legal point. The objective of this blog is to explore whether top-down legal convergence is inferior to bottom-up approaches when it comes to harmonisation, an underexplored yet pertinent question in international law. While arguments can be made in favour of bottom-up approaches that seem to have been more effective in some cases, I argue that both these mechanisms are not only complementary but also co-dependent through the case study of international intellectual property (‘IIP’).

Defining ‘top-down’ and ‘bottom-up’

Top-down convergence of IP rights vertically across jurisdictions and horizontally across different instruments of IP protection is the standard way of harmonising and converging legal standards. Article 31 of Vienna Convention on the Law of Treaties (‘VCLT’) contains rules for treaty interpretation which are applied by the international dispute settlement bodies to enforce obligations contained in these international agreements. Article 31(1) for instance requires the ‘ordinary meaning’ to be given to terms along with a treaty’s ‘context’ in light of its ‘object and purpose’. Such established principles of interpretation maintain consistency and ensure harmonisation top-down to some extent, especially in cases where different jurisdictions or agreements use but not explicitly define similar terms.

Donald P. Harris [2016] recognises that a ‘bottom-up’ approach to law-making requires a bedrock of social movements at the grassroot level. Unlike the traditional top-down harmonisation, the output of a bottom-up approach doesn’t focus merely on the economic impact of IP protection. It has in fact led to ‘reframing’ of the entire IP debate as a means of fostering development [Amy Kapcynski, 2008]. Bottom-up convergence can lead to harmonisation both directly and indirectly. One instance of direct impact would be the gradual development of an understanding of ‘subsequent practice’ as an established agreement of the parties through Article 31(3)(b) of the Another case of direct impact is when social movements or civil society efforts lead to an amendment of an international treaty (as in the case of Doha discussed below), that then further goes on to fill the gaps in harmonisation through top-down effects.

This cyclic relationship can be well justified through the theory of legal evolution. Simon Deakin [2011] argues that stable laws emerge when agents share common beliefs concerning the future states of a social system. This might seemingly make the bottom-up approach look shinier because of the higher chances of acceptance of norms established through collective will. However, Deakin also argues that the laws constantly replenish and reproduce, being constantly influenced by external social factors in the environment. If the IIP regime is considered to be ‘law’ (as an end goal of the evolution of this IIP system) and the bottom-up efforts (including what different domestic courts say) are considered as external social factors in Deakin’s theory, then both the approaches should ideally fit together moving the system forward. The two case studies of the Doha Declaration and Marrakesh Treaty are perfect examples of how this happens.

Positive arguments in favour of complementary top-down and bottom-up

These two approaches co-exist and complement each other to effectuate better harmonisation of different areas of IIP law. This is reflected in the two cases of the Doha Declaration and Marrakesh Agreement.

• Case Study I: Doha Declaration

During the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS’) negotiations in 2001, the compulsory licensing provision in Article 31 gained traction because of the health crisis in South Africa. The government enacted legislation allowing for parallel importation of AIDS drugs from countries that had granted compulsory licenses, thereby rendering the medicines cheaper than the patented rates. A suit filed by pharmaceutical companies in response faced rigorous backlash by global health enthusiasts and various NGOs. While this forced the industry to withdraw its legal action, it effectively provided a strong ground for the ‘Para 6 Solution’ in the Doha Declaration, which acknowledged the difficulties some countries might face in benefitting from compulsory licensing waivers due to a lack of manufacturing capacity. This eventually led to the addition of Article 31bis of the TRIPS, which loosened the restriction on the supply of compulsory licensed products that was earlier limited to domestic markets only.

This meant that countries would now be allowed to import compulsory licensed medicines from certain ‘eligible countries’. Harris [2016] argues that this revealed the flexibility of IIP system to accommodate a political process for amending the status quo. The Doha Declaration was therefore a result of the strong-headed coordinated efforts of various civil society organisations and public health advocates [Watal, 2011], which then paved way for expanding the policy space to allow a more utilitarian interpretation of IP laws.

• Case Study II: Marrakesh Treaty

The Marrakesh Treaty is an example of how the collective efforts of disability rights enthusiasts coupled with some developing countries shifted the focus of IP to protect the interests of the visually impaired. The 2013 treaty was accomplished through the coordinated effort of NGOs and some developing countries. The issue first gained international attention when Prof. Sam Ricketson prepared for WIPO an examination of copyright exceptions for the visually impaired in 2003; the movement then took off when the World Blind Union and Knowledge Ecology International convened an expert group to consider a possible treaty for the blind. [Harris, 2016]. These efforts raised public consciousness about human rights pertaining to the access to information for the blind. This resulted in a treaty that mandates countries to introduce a standard set of limitations and exceptions to permit the reproduction and distribution of adapted forms of copyrighted works for the impaired. Molly K. Land (2018) argues how the enactment of the Marrakesh Treaty is bound to pave way for more grassroot action pushing for further incorporation of the IP-human rights nexus in both domestic and international regimes. This is another example of how coordinated civil action from the bottom up could ultimately change the law which will then have top-down effects.

Normative arguments in favour complementary top-down and bottom-up

• Failure of stand-alone bottom-up approaches

Both the above case studies reflect an indirect way through which bottom-up convergence can lead to harmonisation, i.e. through an impact on international law that then takes the objective of harmonisation forward through its top-down effects. However, an assessment of some bottom-up attempts made by the courts where the effects did not penetrate the international legal regime raises some fundamental questions of harmonisation itself.

An example of the effort of domestic courts to ensure harmonisation to some extent is the Actavis Group Case (2012), where a UK Court had to consider whether foreign patents granted in France, Germany, Italy and Spain had been infringed. Emphasising the common trend to apply EU law in the interest of speedy, non-conflicting justice, the UK Court noted that while it was easier for courts to harmonise with respect to procedural issues (such as enforcement or justiciability), it’s not the same when it comes to substantive standards in IP law.

In the Delhi Photocopying Case (2016) for instance, the Indian Supreme Court explicitly rejected the petitioners’ reliance on the decisions of UK, Canada and US courts, to ultimately allow bulk photocopying of copyrighted material for educational purposes. The court held that jurisprudence from developed jurisdictions was irrelevant because of vast differences in the scope of fair use and fair dealing exceptions in different countries. While this case reflects the failure of domestic courts to harmonise bottom-up, it also prompts a challenge to the inherent presumption contained herein—whether harmonisation is really the desired end in international law.

• Failure of stand-alone top-down approaches

This challenge is well reflected in some instances where a stand-alone top-down approach has failed too. For instance, it still remains a question of debate whether the Berne Convention has settled on an ‘originality’ standard in copyright law. There is significant divergence in US, Canadian and European approaches reflected in a wide spectrum of tests ranging from the bare minimum ‘sweat of the brow’ to the extensive ‘individual personality’. While the failure of these top-down approaches can be partially blamed on the absence of complementary bottom-up efforts, it is time to think about why that is the case. The differences in the socio-economic environments of different countries have been significant hurdles to bottom-up efforts, which is also an indication of the fact that maybe complete harmonisation shouldn’t be the goal.

Conclusion

Hence, it can be concluded that not only are the top-down and bottom-up approaches complementary but they are co-dependent, especially in cases involving multiple stakeholders and debates surrounding broader policy objectives. In complex issues involving crucial conflicting rights, it is much easier (rather most likely to be the case) that governments resolve the Prisoners’ Dilemma in policymaking through bottom-up efforts that finally lead to top-down effects. Instances of failure of stand-alone approaches further indicate why they should be complementary if harmonisation is to be achieved. However, before agreeing to the normative arguments as to why top-down and bottom-up approaches should be complementary means to achieve harmonisation, we must challenge the basic premise that assumes harmonisation as the ultimate goal.