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

Abstract

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.

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“…3 The existence of such complexes creates opportunities for strategic action. 4 Depending on the characteristics of a regime complex, available change strategies for dissatisfied states can include regime shifting (the use of existing alternative institutions), competitive regime creation (creating new institutions to challenge existing ones), or attempting to secure internal change without exercising such outside options. 5 In complexes that are characterized by higher degrees of functional differentiation between institutions, that is, complexes populated with institutions within the same issue area that differ in their roles, a strategy of regime shifting is more difficult, while a strategy of regime creation is more likely.…”

“…7 Similarly, in areas with clearly defined jurisdictional boundaries, dissatisfied states are likely to be constrained in needing to deal with the institution that is considered the appropriate setting for a particular issue. 8 The degree of dominance of a focal institution therefore also determines the range of feasible options available to dissatisfied states. Finally, the organizational density, and resource availability in an issue area can also mean that the development of new institutions is often constrained where density is high and resource availability is low.…”