Institutional Complexity and Opportunity Structures: Weaker Actor Influence in International Intellectual Property Regulation

Overlap among international institutions affects the strategic options that are available to actors. Yet no existing approach fully explains who benefits from regime complexity. While some point to materially powerful actors, others highlight weaker challengers of the status quo. Drawing on historical institutionalism, I conceptualize two dimensions of complexity. I argue that depending on the mode of interaction among the institutions in and the degree of institutional fragmentation of a governance area, opportunity structures for weaker challengers are more open or closed. Shifts on these dimensions over time thus lead to an opening or a closure of opportunity structures for challengers. I assess this argument by focusing on such shifts in two areas intellectual property regulation. The article contributes to the overall topic of the special issue and advances the literature on regime complexity by highlighting the divergent effects of different forms of institutional complexity on different classes of actors.

Policy Implications

  • The availability of multiple institutions in a governance area creates opportunities for strategic action by entrepreneurial actors.
  • Strategies of institutional choice, such as forum shopping and regime shifting, can be used not only by materially powerful actors, such as developed countries and transnational corporations, but also by weaker actors, such as developing countries and civil society NGOs.
  • Actors who are looking to achieve regulatory reform should be mindful of shifts in institutional contexts over time, since these may lead to an opening or closure of the opportunity structure for challengers of the status quo.
  • Disputes in intellectual property regulation are often perceived to be zero-sum games. Outcomes like the Marrakesh Treaty and the Seed Treaty demonstrate that there is room to introduce user rights without unduly affecting the legitimate interests of creators and inventors. Regulators and stakeholders should jointly explore this room to improve access to knowledge particularly in developing countries.


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