Agentification & the governance of European intellectual property rights: Competition, cooperation, and conflated agency governance

This paper addresses the governance of two EU decentralized agencies that are involved in the management of intellectual property rights (IPRs): (a) the European Union Intellectual Property Office (EUIPO) that deals with trademarks and industrial designs, and (b) the Community Plant Variety Office (CPVO) that handles plant variety rights. These are two EU agencies that -to date- have been under-researched. With reference to the -vast- literature on EU agentification, the paper first outlines and discusses three dimensions of agency governance: (a) control (building on classic and more recent principal-agent theory), (b) accountability, and (c) network management (arising from the need of EU agencies to cooperate with their national counterparts). The paper argues first that in the literature control and accountability mechanisms are often -and wrongfully- conflated. Here, special attention is paid to the role of reputational aspects. Secondly, it argues that institutionalization of network management features in the set-up of EU agencies (e.g., by including heads of national agencies in -oversight- boards of EU agencies) seriously blurs control relations between the principal and the agent. The paper then applies these ideas to the EUIPO and CPVO. It briefly discusses the governance of IPRs in Europe (including patents, managed by a non-EU entity, the European Patent Office). Such governance is a balancing act between the need for unitary (i.e. EU-wide) protection as a cornerstone of the internal market, and the vested interests of national (often: centuries old) IP systems that provide limited territorial IP protection. On the one hand, European IP systems and the (EU) agencies involved in these systems compete with national IP bodies. On the other hand, they need to cooperate with them, to create coordinated systems within the internal market. The paper addresses how this balancing act of coordination in a competitive environment affects the relationships between the various actors involved (and especially between national IP bodies and the EU agencies), in terms of the three dimensions of agency governance: control, accountability, and network management.