Intellectual Property Regulation under International Law
Summary and Keywords
The creation of the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) in the mid-1990s altered the regulation of intellectual property under international law. Prior to the TRIPs Agreement, intellectual property regulation consisted of a patchwork of international treaties and conventions coordinating reciprocal national treatment of signatory states’ domestic intellectual property protection. Generally, those agreements strove for minimum standards of protection, but left levels and types of protection to member states’ national discretion. TRIPs’s strict uniformity represented a momentous change. Development theorists who have examined the practical implications of intellectual property regulation under international law have echoed critical theorists’ assertions of TRIPs as a watershed moment. However, they have expressed concerns over the domination exercised by developed countries over developing countries within the current international intellectual property regulatory system. Of particular importance are international impositions into developing countries’ national legal systems via TRIPs, and efforts of developed countries to extract from developing countries intellectual property concessions over and above those contained in TRIPs. A wide range of articles on intellectual property regulation under international law have also been published in legal journals and periodicals. Three broad themes stand out: concerns about practice and practical applications (i.e., practice tips, reviews of cases and WTO decisions); concerns about policy aspects and consequences of intellectual property law; and exploration of the philosophical underpinnings of the law.
Intellectual property regulation under international law, in its truest sense, is a relatively recent development. Before the 1990s, intellectual property regulation was a creature of national law. International intellectual property treaties and conventions essentially formed a web of loosely coordinated protection, with the modest goal of member nations according each other national treatment. The Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs), created in the mid-1990s, fundamentally altered the previous system. Intellectual property rights under international law became less an aspect of national discretion and much more an object of global governance. The implications of this change are only now being sorted out.
This review essay contains five sections. The first section presents the emergence of the topic of intellectual property regulation under international law in the discipline, focusing on key developments spurring inquiry. The second section provides a brief discussion of the intellectual property forms regulated under international law, a discussion of international intellectual property regulation in the pre-TRIPs era, and a discussion of international intellectual property regulation in the post-TRIPs era. The third section reviews the discipline’s prevailing considerations of intellectual property regulation under international law. The fourth section provides a brief and general review of legal and economic scholarships considering the topic. The fifth and final section suggests several lines of future inquiry.
Emergence in the Discipline
Unlike topics such as war, bargaining, or nuclear armaments, the study of intellectual property rights and regulation is of relatively recent vintage for the discipline. As technology has taken on ever-increasing social, political, and economic importance, so too have the rights and legal structures surrounding and girding technology and intellectual property. Further, intellectual property’s recent metamorphosis into a highly salient trade issue has made intellectual property and its protection a policy issue of primary importance for developed countries and developing countries alike, albeit for contrary reasons. In turn, intellectual property rights and their regulation under international law have generated considerable attention from international political economy theorists. Within the discipline, treatment centers on four general themes – the intellectual product as “property,” the role of private power in intellectual property regulation, intellectual property regulation as an arena of contestation, and intellectual property regulation’s impact on developing countries. Several key developments spurred inquiry.
In 1994, the TRIPs Agreement emerged at the close of the GATT (General Agreement on Tariffs and Trades) Uruguay Round. Prior to TRIPs, intellectual property had been outside the consideration of trade-related matters. This was the first time it became a trade issue. Moreover, TRIPs was the most comprehensive and universal reform of international intellectual property regulation to date. Until the creation of TRIPs, “regulation” of intellectual property under international law consisted of a patchwork of international treaties and conventions coordinating reciprocal national treatment of signatory states’ domestic intellectual property protection. Generally, those agreements strove for minimum standards of protection, but left levels and types of protection to member states’ national discretion. TRIPs’s strict uniformity represented a momentous change.
Other developments in the 1990s and 2000s also brought greater attention to the regulation of intellectual property under international law – the HIV/AIDS crisis in Africa, explosive growth in corporate patenting, and the American entertainment industry’s highly publicized litigation over digital copying technology. As the HIV/AIDS virus ravaged Africa, access to pharmaceutical treatments became a major issue for many African states. The treatment needs of their populations clashed with states’ international obligations for intellectual property protection under TRIPs. As South Africa fought multinational pharmaceutical corporations for access to drug treatments, the human consequences of intellectual property rights and protection came into sharp relief. (For detailed treatment of this issue, see Streckx 2004; Hunter 2003.) In addition, the unprecedented rise in industrial patents on heretofore un-patented biological materials, biological and life processes, and genetic materials generated much suspicion, concern and protest. This rash of patenting resulted in reigniting debate on what should and should not be patentable, and greater public awareness of the issue of corporate bio-piracy in developing countries (May 2000:101–6; Farhat 2008). Lastly, the entertainment industry’s vigorous prosecution of individuals who digitally copied and shared music and film products, led many to question intellectual “property” – who owns what, and to what limit (May 2000; May and Sell 2006).
Critical theorists (Burch, May), development theorists (Shadlen, Sell), and globalization theorists (Marlin-Bennett, Sell) in the international political economy subfield led the discipline’s query into intellectual property regulation under international law. These theorists noticed troubling discontinuities and disjunctures between the codification of (and supporting rhetoric of) intellectual property regulation on the international level and its actual operation. They have explored and analyzed the origins of TRIPs’s formation and its effects for intellectual property-producing countries, intellectual property-consuming countries, and for the contemporary balance between public access to and private ownership of intellectual property. To help situate the discipline’s treatments of intellectual property regulation under international law, a background discussion of intellectual property is necessary. To that end, the next section provides a general review of intellectual property types regulated under international law, and the international legal/regulatory landscapes both before and after TRIPs.
Intellectual Property Regulation under International Law: Past and Present
Intellectual Property Forms Regulated under International Law
Several intellectual property forms are subject to regulation under international law. The most prominent are copyrights, patents, trademarks, industrial designs, geographical marks and trade secrets. Intellectual property ownership confers certain rights and legal protections for owners of knowledge and/or technological products. Based on conceptions of material property ownership, intellectual property can be owned by either natural persons, or artificial persons, such as corporations (see Burch 1998). The rights and legal protections afforded by intellectual property ownership essentially confer monopoly privileges to owners/rights holders by allowing them to set prices and temporarily forestall competition (see Burch 1995, 1998; May 2000).
The most commonly recognizable intellectual property forms are copyrights and patents. A copyright is an exclusive right in an original and expressive artistic work, or computer software, giving the author exclusive control over the work. Copyright protects an expression’s exact form, not the underlying ideas (May 2000:8–9). Copyrights also protect how an expression is fixed – i.e., whether it is written, or recorded – and provide for control over use and dissemination, among other things (May 2000:8–9). Traditionally, a copyright’s term of protection is the length of the author’s life, plus 50 years. After that time, the work becomes part of the public domain. In addition to civil penalties, copyright protection often includes criminal penalties for infringement, which do not typically accompany protection of other intellectual property forms (May 2000:8–9). Patents protect ideas or inventions (and innovative processes). Discoveries cannot be patented. The “standard distinction is that scientific discoveries reveal truths about nature and how it works; inventions use principles of nature and technology for new devices or processes that are novel, useful, and nonobvious” (May 2000:8; Marlin-Bennett 2004:34). For patent protection, an invention must be new, non-obvious, and useful. Typically, a patent’s term is for twenty years from the patent’s date. When a patent expires, the patented object or process enters the public domain. In some systems, patents are granted to the first filer; in others, they are granted to the first to invent.
Trademarks, basically, are branding. They protect a specific producer’s “reputation” (May 2000:10–11 (citing Wilkins 1992); Marlin-Bennett 2004:31). Trade secrets are items or processes, such as the recipe for Coca-Cola, that producers seek to keep secret (May 2000:10–11 (citing Friedman et al. 1991); Marlin-Bennett 2004:31–2). Though always the object of significant protective efforts, trade secrets, or violations of trade secrets, are most often publicly invoked in high-level national and international corporate litigation. Industrial designs are “ornamental component[s]” of specific products that readily identify that product, such as the shape of the Coca-Cola bottle (Marlin-Bennett 2004:33; May 2000:9–11). Geographical indications are most often associated with agricultural and specialty food items (Marlin-Bennett 2004:34). A geographical indication typically represents where a food product is made or grown, such as Bordeaux wine.
Prior to TRIPs, intellectual property was not truly regulated under international law. It was domestically regulated. Internationally, intellectual property protection was loosely coordinated within a patchwork of international treaties and conventions. Though an aim of these agreements was minimum standards of protection, they at best attained reciprocal protection among signatory states. Generally, the main elements of the pre-TRIPs treaties were: national treatment, right of priority (first to create/invent) and non-discrimination (Sell 1998:107–10; May and Sell 2006:119–22). Signatory states retained sovereign discretion over domestic intellectual property legislation, but were expected to adhere to the treaties’ principles (May and Sell 2006:120). International intellectual property agreements, generally, did not call on signatory states to create new domestic laws (2006:119–22). Focus centered on ensuring that each signatory state accorded citizens of other signatory states the same intellectual property protection it extended to its own citizens (Sell 1998:107–10). Despite a large number of significant international intellectual property protection agreements in this era, signatory states preserved sovereign discretion over intellectual property protection and enforcement (Sell 2003:10–12). Thus, intellectual property regulation remained primarily an issue of domestic law. And, as signatory states retained discretion over domestic intellectual property protection and enforcement, intellectual property protection and enforcement varied widely from state to state (Sell 2003:12–13).
The initial inception of Western intellectual property law emerged in fifteenth-century Venice with the first formal patent system (May and Sell 2006:58). Prior to what May and Sell term the “Venetian moment,” guilds (apparently recognizing opportunity for gain through creating knowledge scarcity) monopolized “intellectual property” until capitalism arose in Europe (2006:51). Venice created a “legal and institutional form of intellectual property rights [that] established the ownership of knowledge and was explicitly used to promote innovation” (2006:58). The Venetian codification is similar to today’s legal provisions – inventions had to be new or useful, there was a specific time limit for the patent, rights were transferable, the patent had to be worked, and the state – for strategic uses – retained the right of compulsory licensing (2006:58, 61). Like today, the combination of technology and vested interests drove the legal configuration: “printing trades […] profound[ly impacted] the political economic environment in which intellectual property as a formal institution developed […] The advent of printing prompted knowledge holders to seek protection but also limited that protection to specific sorts of knowledge (the new, the useful)” (2006:65–6).
This legal/institutional recognition of “intellectual property” was “in part a response to a new revolutionary information technology. Printing changed the environment in which knowledge and information could be deployed” (2006:70). Technology “changed the rules of the game for those who sought to profit from their control of ownership of secret processes and techniques, of privileged information, or merely of access to important scholarship” (2006:70). Similar to today, though not truly modern, the drivers of Venice’s development of intellectual property rights and regulation were the printers who stood to gain from “a formal ownership regime in knowledge” (2006:70–1).
The next defining development in intellectual property regulation came in seventeenth-century England. The English created what could be considered a modern legal/institutional system of intellectual property protection, based on economic premises. In order to attract foreign technology in this mercantile era, England established a system, first to grant patents, and then to grant copyrights (2006:80, 81). As with the Venetian system, the locus of intellectual property rights and protection was not the author/creator, but the printer/producer (2006:90). Subsequent philosophical changes appear to have contributed to England’s 1709 Act of Anne altering the system to bring the author into the rights and protections afforded by the law. Several elements of the Act foreshadow modern justifications for intellectual property rights and regulation: “the recognition of ‘natural rights,’ a ‘just reward’ for authorial labor, and the stimulation of creativity” (2006:93). Subsequent case law, applying time limitations to copyrights, edified this elevation in authors’ rights to equality with producers’ rights (2006:93–5). As in the Venetian moment and in modern times, these developments in English copyright law grew directly from “pressures brought by the [very] industry that copyrights were to govern” (2006:96).
The late 1800s ushered in the modern international era of intellectual property rights and regulation. From the late 1800s to the mid-1990s, the Paris Convention for the Protection of Industrial Property (1883) (see www.wipo.int/treaties/en/ip/paris/trtdocs_wo020.html) (“Paris Convention”) and the Berne Convention on Artistic Works (1886) (see www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html) (“Berne Convention”) were the main international intellectual property agreements. Both conventions were subject to amendment and revision over time. The Paris Convention was amended in 1891 and revised in 1900, 1911, 1925, 1934, 1958, 1967, and 1979. The Berne Convention was amended in 1896 and revised in 1908, 1914, 1928, 1948, 1967, 1971, and 1979. (See United States Treaties and Other International Agreements (UST) and Treaties and Other International Acts Series (TIAS) for the text of each amendment and revision to the Paris Convention and Berne Convention.) Other international intellectual property agreements also emerged throughout this era to supplement, rival or improve on the Paris and Berne Conventions. Again, the main elements of these two, and most pre-TRIPs international agreements, were: national treatment (a member state treats the citizens of other member states the same as it treats its own citizens), right of priority (protection against unauthorized use), and nondiscrimination (a member state will not prevent other member states’ citizens from entering its national market) (see Sell 2003; Marlin-Bennett 2004; May and Sell 2006).
The Paris Convention covered industrial property protection (i.e., patents, trademarks, industrial design). It provided for national treatment and right of priority (if a member state’s patent holder files within the appropriate time, the date of the filing in that member state corresponds to the date filed in the initial member state) (Marlin-Bennett 2004:51). The Paris Convention did not dictate signatory states’ domestic determinations of whether to grant a patent protection. The Berne Convention, still in force, extended by TRIPs, covers artistic works (i.e., painting; writing; broadcasts; and, as they developed, computer software programs) (May 2000:67–8; May and Sell 2006:165–7). The Berne Convention provides for national treatment and automatic protection (member states could not require authors to apply or register for copyright before according protection). It specifies those works that member states must protect, and those over which they have discretion to accord protection.
Throughout the pre-TRIPs era, there was considerable dissatisfaction with the Paris and Berne Conventions (see Sell 1998). This dissatisfaction led to regular amendments and revisions, and to the creation of other subsequent treaties covering various intellectual property, such as the Madrid Agreement Concerning the International Registration of Marks (1891) (www.wipo.int/madrid/en/legal_texts/trtdocs_wo015.html), the Strasbourg Agreement Concerning the International Patent Classification (1971) (www.wipo.int/treaties/en/classification/strasbourg/trtdocs_wo026.html), the Patent Cooperation Treaty (1970) (www.wipo.int/pct/en/texts/articles/atoc.htm), and the Universal Copyright Convention (1952) (portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html). Developing countries were particularly dissatisfied with the Berne Convention, Paris Convention, and other international intellectual property agreements. Their discontent led to the Berne Convention’s most significant revision in 1971. The 1971 changes added an appendix to the text, carving out special exceptions for developing countries allowing them to substitute a system of non-exclusive and non-transferable licenses for systems of exclusive rights of translation and reproduction (see Berne Convention, Appendix, arts. I–IV at www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html). Despite considerably regular amendments and revisions to the many pre-TRIPs international intellectual property agreements, there was little uniformity. As member states retained discretion in establishing and enforcing national intellectual property laws, considerable variation in states’ intellectual property protection and enforcement remained (see Sell 2003, 1998).
The TRIPs agreement, effectively, subsumed all international intellectual property agreements that came before it. TRIPs covers copyrights, patents, marks, geographic indications, industrial designs, trade secrets, integrated circuit layouts, and test data. It is overseen by the World Trade Organization (WTO) (Trade Related Aspects of International Property Rights (1994), www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm). States seeking WTO membership are required to accede to TRIPs (May 2000:68–72). Linking WTO membership to TRIPs, by design, eliminates the national discretion that caused the variation in international intellectual property regulation before TRIPs (May 2000: ch. 3; May and Sell 2006).
TRIPs’s patent regime is considerably stricter than that of the Paris Convention. Patents under TRIPs must be new, inventive, and industrially applicable (May and Sell 2006:169–71). They cover pharmaceuticals and living organisms, and endure 20 years from the filing date. Under TRIPS, if an idea meets minimum patent standards, it can be filed in any WTO member country. All member countries are required to establish processes for registering patents and for litigating infringement (May and Sell 2006:162–3). TRIPs also encompasses the Berne Convention (May 2000:68). Under TRIPs, copyrights are protected for the author’s life, plus at least 50 years. It also protects computer software, sound recordings and computer databases (May and Sell 2006:164–7). TRIPs requires members to “enforce intellectual property rights through civil and administrative procedures and remedies, as well as criminal procedures” for intentional violations (Marlin-Bennett 2004:64). All disputes arising under TRIPs are resolved through the WTO, which enforces rules and authorizes sanctions for trade violations (May and Sell 2006:162–3). Failure to enforce TRIPs provisions results in violators being subject to trade sanctions in any trade sector, not just intellectual property (May and Sell 2006:162–3).
TRIPs represents a unique moment in both intellectual property regulation and international law. First, TRIPs was created under GATT, transforming intellectual property protection and regulation into a trade issue (May 2000:68–72). Second, by requiring adherence to TRIPs as a condition of WTO membership, the significant variation in intellectual property regulation and enforcement across states of the previous era has largely been eliminated (May 2000:68–72; Sell 2003:6–9). TRIPs replaces the prior legal regime with uniform intellectual property protection and enforcement standards. Also in sharp contrast with the previous era, TRIPs requires member states to adopt criminal penalties in addition to civil penalties for intellectual property rights violations (Sell 2003:11–13). Lastly, regarding international law writ large, TRIPs imposes a uniform intellectual property regulatory regime from the top down rather than emerging from the consensus of states and similarity of domestic law (Sell 2003:11–13). The implications for sovereignty are considerable.
Another significant aspect of TRIPS is its private nature. Unlike previous international intellectual property agreements, TRIPs “applies to the rights of private individuals rather than to goods” (Sell 2003:13 (emphasis in original; citations omitted)). At its core, TRIPs emerged from the exercise of private power. It is essentially the resultant manifestation of a report from the Intellectual Property Committee, which was founded and led by more than a dozen multinational corporation CEOs (among them DuPont, Merck, GE, Pfizer, Bristol Myers Squibb), and the concerted effort of this group to cast intellectual property as a trade issue (see Sell 1998, 2003). Also indicative of the new private nature of intellectual property regulation under international law ushered in with the creation of TRIPs, is the World Intellectual Property Organization’s (WIPO) relatively recent move toward “more direct contact with private actors – firms, for the most part – in addition to states” (Sell 2003; Marlin-Bennett 2004:49). WIPO was originally created to administer international intellectual property treaties in the pre-TRIPs era. Its mission has changed to aiding the WTO in implementing TRIPs (Marlin-Bennett 2004:49).
Though intellectual property protection has for a considerable time been the subject of a host of international agreements, regulation and enforcement of intellectual property rights remained a creature of states’ domestic law. TRIPs’s uniformity and universality reaches deeper than previous treaties as it “does not merely circumscribe the range of acceptable policies governments may practice, but ‘obliges governments to take positive action to protect intellectual property rights.’” (Sell 2003:13, citations omitted). TRIPs has created a more vast, more stringent, and more detailed web of intellectual property rights and regulation for every WTO member state to adopt and enforce (see May 2000). Its effect has been to solidify property rights, and corresponding market advantages, for those private corporations in technological-lead sectors and the states that sponsor them (see Sell 1998, 2003; May and Sell 2006). As TRIPs has changed the rules of the game for intellectual property rights and regulation, it also ushered in a new area of inquiry in the discipline. Theorists have challenged the presumptions upon which the current international intellectual property regulatory regime is built, questioned the “property” nature of intellectual property, probed the contention over the balance between private right and public access to information and knowledge, and examined the current regime’s impact on developing countries.
Treatment within the Discipline
The Intellectual Product As “Property”
Critical theorists have challenged the treatment of intellectual property as material property, the notion of intellectual property as private property, and intellectual property as a uniquely liberal notion. Burch, in Intellectual Property Rights and the Culture of Global Liberalism (1995) and in “Property” and the Making of the International System (1998), queried the very origins and notions of property as related to intellectual property, and as defined and protected by international law. Though throughout its development, intellectual property has generally been a primarily Western conception, TRIPs is a unique moment. TRIPs is “remarkably specific” with “vigorous procedures for enforcing private, exclusive rights of intellectual property holders” (1995:214).
Beyond its obvious practical implications, TRIPs’s symbolic significance is crucial. Burch regards TRIPs as “a decisive statement of political principles described generally as liberal (in the sense of an ideology or worldview rather than as a partisan political label), and its comprehensive character hints at a nascent culture of liberalism” (1995:215). TRIPs’s premises of open markets and free trade are Western liberal principles “organized around the defining concepts of rights and property” (1995:215). Those premises are not universally given or accepted. Thus, TRIPs “symbolically formalizes a global way of life constituted primarily by liberal principles, concepts, values and behaviors” (1995:216). In the pre-TRIPs era, international intellectual property regulation was largely a creature of national origin, leaving some room for culturally and/or ideologically competing principles. TRIPs’s regulatory framework, in contrast, imposes universal minimum regulatory standards leaving no room for nationally based cultural-legal expressions of property or intellectual property protection.
The impact of the ideational aspects of the TRIPs regulatory regime are of primary concern as these notions of property frame the rules of social interaction, severely limiting actors’ perceivable options. Burch asserts that definitions of property create “patterned, fundamental, [and] constitutive principle[s] of social life” (1998:12) “Property” is a constitutive principle, that “effectively generate[s] distinctive, concentrated sets of recurring and pervasive social practices […] [that] […] constitute patterned social behavior […]” (1998:12). The practical implications of these ideations, enshrined within the current international intellectual property regulatory regime codified in TRIPs, are that they amount to a system of rights that “construct[s] social relations, allocate[s] and secure[s] resources, and [ultimately] effect[s] domination” (1998:12). Domination is perpetuated as concepts and legal constructions of property and property protection generate “consistent, coherent, [and] extensive social practices that (re)produce social structures and institutions” (1998:37). Such “social rules [and] property rights simultaneously constitute social conditions and regulate activities” (1998:153). As codified in TRIPs, the primacy of Western notions of property and the relations stemming from them leave no room for contending conceptions of property or alternative socio-culturo-economic configurations. TRIPs is not neutral. Rather, Burch contends, it promotes and maintains specifically capitalist socio-market relations.
May (2000) challenges the treatment of intellectual property as material property. Intellectual property does not fit in the material property conceptual framework, as intellectual property lacks the qualities of material property. One person’s or group’s use or enjoyment of intellectual property does not preclude use or enjoyment of that same property by another person or group. In other words, intellectual property is not, by nature, scarce like material property often is. For intellectual property, scarcity must be created. In the current era of knowledge-based capitalism, information and knowledge are the new economic lead sector. Knowledge in and of itself, not the carrier of the knowledge, is the new commodity (2000:4–5). May contends that this technological and economic development has engendered a “legal institutionalization of property in knowledge” – a legally created set of rights within a legally manufactured context of scarcity (2000:6). This amounts to an enclosure of the knowledge commons, analogous to the enclosure of the (material) commons in seventeenth-century Britain. In operation, this new enclosure of the knowledge commons perpetuates existing asymmetrical global relations – “a technology gap reinforced by patents” in developed states in relation to developing states (2000:70, 78–9).
The key to intellectual property is commodification – the legal move from “holding to withholding” – the ability to restrict use (2000:21). The current international intellectual property regulatory regime enshrines that ability to restrict use. With property rights and artificial scarcity attached, intellectual property enables its owner(s) to “exclude.” It is from this constructed exclusion that profit is derived through other actors paying for permitted use of the intellectual property. Moreover, since these rights and the scarcity condition are constructed, they “serve particular interests” (2000:18). Specific social and power relations flow from TRIPs. As the prevailing authority, TRIPs defines and controls the problems and the solutions, the very debate. Yet, as a legal construction, TRIPs is not a timeless entity, but only the latest settlement in an ongoing contest over intellectual property. As a settlement of competing interests, justification by the regime’s beneficiaries (most often industrial or institutional intellectual property owners) is necessary to maintain it (2000:22–44).
May identifies three justificatory schemata invoked to marshal support for the current international intellectual property regulatory settlement: labor desert/just reward, self-expression/self-development, and social utility (2000: ch. 1). But, owing to contradictions between its justificatory schemata and how TRIPs actually operates, these justifications fail to ameliorate the ongoing tension between public interests and private interests over property in information. The root of the justificatory failure lies in intellectual property’s lack of true exclusivity that often exists with material property. For example, there is contradiction inherent in the conceptualization of the “individual” underlying the current international intellectual property regulatory regime and its justificatory rhetoric. Much justification and codification are based on the “individual,” with a right to possess and dispose of his or her property (2000: ch. 1). A uniquely Western conception, as noted by Burch, is the idea of the corporation as an individual or person before the law, akin to a natural person. Though based on the notion of protecting the individual’s sovereignty, the current intellectual property regulatory structure operates to subordinate the actual/natural individual to the corporation as individual – the individual as owner is privileged over the individual as creator (2000: chs. 4–6). As the current system exists, it works to separate knowledge from the (often individual) innovator/creator and place it under the control of an (often corporate) owner unconnected to creation (2000:125–6).
May suggests counter-moves to realign the intellectual property regulatory settlement back to a more even balance between private rights to own information and public rights to information access. He contends that the key to previous settlements is the temporal aspect of intellectual property, wherein exclusivity has been routinely limited to a specific time period, after which the intellectual property becomes part of the public domain (2000:56). As TRIPs is not timeless, change is possible, and is most often the result of the contestation between public interests and private interests (2000:17). Expanding the concept of social utility (with a global social welfare approach) and “reintroduc[ing] differential patent and copyright protection” are two potential avenues (2000:169–71). Another is changing the “conception of the knowledge environment to establish a significant role for a broad view of social utility” akin to what took place with the environmental movement (2000:171–2). Also, it should be possible to reconcile the current disjuncture between real individual and artificial individual, by “entrench[ing] the rights of the real individual and remov[ing] the recognition of companies as individuals under law” (2000:174).
Marlin-Bennett (2004) also challenges the power and control aspects of “owning” intellectual property, the commodification of information and knowledge, and constructed nature of such property rights. Like May and Burch, she contends that intellectual property rights are neither standard nor derive from natural law (2004:6). As specified by law, property rights include the right to own something, the right to use something and the right to alienate something (2004:11–12). Intellectual property rights are legal constructions consequent on governments’ determinations of what kinds of inventions they wish to recognize, reward, and encourage (2004:6). Marlin-Bennett posits that the historical trend has been a general expansion in the scope of all property rights. In the realm of intellectual property, given ever-increasing technological innovation and production, this expansion has been especially acute. Like Burch and May, she cites commodification as the key to understanding intellectual property and the current international regulatory regime. Commodification makes knowledge “scarce and excludable[,]” even though by its nature, intellectual property is neither (2004:13). Moreover, she contends that the rules embodied in TRIPs are distinctively Western conceptions. As such, TRIPs’s codification entails a significant and far-reaching power (2004:240–1). TRIPs represents a globalization that matters – a “complex web of ownership rights […] crafted for global markets, primarily under the aegis of WTO, WIPO, and unilateral initiatives in the United States and European Union” (2004:246). TRIPs’s regulatory configuration is a global imposition of a highly particular set of values and conceptions.
Though intellectual property has long been subject to legal protection, the current information age differs substantively from earlier eras. In previous eras, “information was not considered to be intellectual property” and “intellectual property was not merely a compilation of facts or ideas but rather a creative product” (2004:100). Today, the difference between information, creation, and compilation is becoming ever-more blurred owing to the ever-quickening pace of technological improvement (2004:100). For example, data compilations take time, and technical and analytic creativity to amass; however, they can now be mass copied with identical quality (2004:100). Though “information may not be scarce in its natural form, the costs of gathering information are high enough that the compilation has the characteristic of scarcity” (2004:102). Perhaps most interesting, Marlin-Bennett identifies an ironic link between the justifications by private beneficiaries marshaled in support of the current international intellectual property regulatory regime and a well-known aspect of Marx analysis: “the idea that information has value because it is gathered by the sweat of one’s brow parallels Marx’s theory of value […] that true value comes from the labor required to produce a commodity” (2004:117).
Though recognizing the value in rewarding information labor, Marlin-Bennett sees and warns of a dangerous erosion of the global commons of information (2004:114–15).
The Role of Private Power in Intellectual Property
In the modern era, the story of intellectual property regulation under international law is the story of the magnitude of private economic power. Sell (1998 and 2003) sheds light on the very significant private aspects of international intellectual property regulation. Power and Ideas: North–South Politics of Intellectual Property and Anti-Trust (1998) examines the implications of international intellectual property law for north–south relations for two time periods – 1970s to 1985 and 1985 to 1995 – in the pre-TRIPs era. Two important shifts in outlook developed during these periods. A change in “thinking about the economics of innovation” created “tension between traditional approaches to intellectual property and competition” (1998:5).
The first shift was developing countries’ awareness of and effort to address negative consequences of the existing international intellectual property protection regime. Developing nations sought to re-negotiate existing international intellectual property agreements. Spurring their outlook was “unit-level learning [by] certain activist developing countries […] [who] had codified their dissatisfaction with the international system of patent protection by adopting new regional and national laws” (1998:107–8). Existing international agreements’ provisions benefited technology supplying developed countries and hindered developing countries’ economies. For example, developing countries were prohibited from exporting products they produced domestically with technology owned and patented in developed countries (1998:110). Under WIPO, developing countries sought sweeping revisions for the Paris Convention, similar to the Berne Convention’s 1971 revision. They challenged the national treatment and nondiscrimination principles, claiming that those principles operated to mask “the true socioeconomic situation that kept developing countries at a disadvantage” (1998:116). They sought to revise the existing regime’s principles “in the interest of states’ rights, even if it meant a diminution of the rights of the patent holder” (1998:116). In the 1980s, the developed and developing world met to renegotiate the Paris Convention under the auspices of WIPO. Despite developing countries’ fervor for revision, the developed countries’ resistance won out, and negotiations simply died after 1985 (1998: ch. 4).
The second development was the United States changing its outlook on the role of intellectual property in economic competition. The US “radically redefined its interests in intellectual property protection under industry-based pressure to stay economically competitive,” and brought intellectual property protection into the GATT (1998:130). This change in the US position emerged from domestic legal developments resulting in intellectual property being cast as a critical trade issue – a direct result of significant pressure from intellectual property industries. The eventual outcome of these developments was the creation of TRIPs (see Sell 2003).
TRIPs’s creation is primarily rooted in the work of an ad hoc US-based 12-member trade group, the Intellectual Property Committee (IPC), consisting of CEOs of 13 major US pharmaceutical, computer and entertainment corporations (2003:throughout). The IPC position grew out of the industries’ realization that the key to maintaining international competitive advantage lay in intellectual property, and out of gradual strengthening of legal protection for intellectual property domestically (1998:103, 217). The IPC worked institutionalized legislative and executive access points – lobbying groups, regulatory advisement, compliance monitoring, private connections, legal counsel – to pursue their agenda (2003:98–9). The IPC’s success, domestically and internationally, stemmed from several factors – the increasing value of intellectual property, members’ comparative advantage in technological leadership, the industries’ intellectual property expertise, and their ability to frame the issue and discussions around it (2003:8). And, “once the state had accepted the private sector’s trade-based conception of intellectual property[,]” intellectual property industries as represented by the IPC came to view “the US government, and by extension the international institution of the GATT, as a potential ally in their quest to expand international rules covering intellectual property” (2003:97–8). In addition to its US governmental allies, the IPC enlisted its European and Japanese counterparts to present its proposal before the GATT (2003:2, 97). The ultimate result was that “twelve corporations made public law for the world” (2003:96).
Sell contends that, even though it is public law, TRIPs is the “significant instance of the exercise of private power” (2003:7). The IPC’s ability to craft international law is unprecedented, important, and unique: “[i]ndustry revealed its power to identify and define a trade problem, devise a solution, and reduce it to a concrete proposal that could be sold to governments. These private sector actors succeeded in getting most of what they wanted from a global [intellectual property] agreement, which now has the status of public international law” (2003:2).
Moreover, such significant exercise of private power in creating the current international intellectual property regulatory regime has critical implications for the economic and political interactions that flow from TRIPs’s rules and requirements.
Like Burch, Sell maintains that TRIPs’s effects are not neutral. It is a global expansion of a set of property rights and protections that are “an important form of market control; it is a state-sanctioned means of controlling competition” (2003:39). This is not a condition of which the IPC was unaware. Owing to its economic and political positioning, the committee was able to recognize the “particularly important structural (and material) changes [–] the development of new technologies and the increasing value of intellectual property” (2003:37). TRIPs can be viewed as a reflection of the IPC’s acuity, and a manifestation of its desires to solidify and control its relatively advantageous market position. Yet, those implications of TRIPs are not new, only more obvious and more globally codified.
TRIPs brings into sharp focus the enduring tension between private right and public benefit that has been the conundrum for intellectual property regulation over time. Specifically, intellectual property rights “reflect an inherent tension between creation and diffusion.” This tension poses the question of whether intellectual property should be treated as “a public goods problem for which the remedy is commodification, or a monopoly of information for which the remedy is unfettered competition” (2003:15 (citations omitted)). For Sell, like May and Burch, TRIPs represents only the latest moment in that struggle. TRIPs’s monopolistic effects ring particularly ironic, given the current ascendant free trade and liberal economic philosophies and policies espoused by Western governmental and industrial leaders. But, as May contends, it is the irony of TRIPs and the inherent contradictions between its premises and practical operation that may work to create another moment in international intellectual property regulation. Sell observes that TRIPs’s “hardness” appears to be creating new civil society actors to galvanize opposition to its harsh results (2003: ch. 7). Especially in the realm of access to medicines, these groups have been particularly successful using campaigns to “expose hypocrisy” and to shame key private interests and states (2003: ch. 7). TRIPs has generated “new actors who oppose the global property rights regime, and who are changing the game yet again and altering the political landscape over which this contest will continue to be fought” (2003:27).
Intellectual Property Regulation: Arena of Contestation
Intellectual property rights and regulation have waxed and waned over time. During some periods, such protections and regulations favor private ownership; in others, support for wide public access to knowledge and information has informed codification. Whether inclined to the public or to the private, intellectual property rights and regulations, according to May and Sell, “have always been historically and politically contingent” (May and Sell 2006:5). The current system is no different. The international intellectual property regulatory system under TRIPs is only the latest settlement in the enduring contestation between private and public interests over the control of and access to information and knowledge.
The modern international intellectual property regulatory regime is a product of technological development and contestation. Specifically, it is a “product of the interaction among the political (and social) conception of the role of the knowledge creator (ideas), the character of technologies using intellectual property or subject to its protection (material capabilities), and the legal construction of intellectual property (institutions)” (2006:31).
In Intellectual Property Rights: A Critical History, May and Sell present a thorough exploration of the historical development of (Western) conceptualizations and codifications of intellectual property rights and protections, through to the current era. The history of intellectual property’s development is a repetitive one. Punctuated by momentary settlements, over time intellectual property rights and regulation have been highly contested, vigorously defended, and subject to fluctuation.
The enduring contestation over intellectual property is rooted in the nature of intellectual property itself. As it is not naturally scarce, scarcity of intellectual property is a legal construction. Legally constructed scarcity emerges when “knowledge and/or information becomes subject to ownership[; intellectual property rights] express ownership’s benefits” (2006:6). Government intervention into social relations is necessary to create such scarcity through ownership. The scarcity that is “[p]roperty is the codification of particular social relations, those between owner and nonowner, reproduced as the owner’s rights” (2006:17). And, May and Sell assert, from the benefit of ownership in intellectual property flows profit opportunity, which consists of three main aspects: “(1) the ability to charge rent for use; (2) the right to receive compensation for loss, and (3) the right to demand payment for transfer to another party through the market” (2006:7). Together, these profit aspects of ownership amount to monopoly power conferred on the intellectual property owner (see also Zeller 2008).
As considerable profit opportunity is conferred on intellectual property owners through legal recognition and memorialization, the result is vigorous “political contests over the content of laws” (2006:24 (citations omitted)). The history of contestation over intellectual property is “a contest between monopoly power or private rights (limiting public access) and public-regarding intent to free the flow of information (at the cost of the rights of the individual creator)” (2006:26–7). Understanding today’s international intellectual property regulatory regime lies in understanding the contestation and power struggles that went into the adoption of the current law. May and Sell contend that “governance of intellectual property, first at the national level and then at the international level, has been subject to the continued mobilization of interest to establish and reinforce positions of advantage” (2006:28).
The current regulatory regime is rooted in the work of particular industrial interests, as well as to the nature of new technology and its pace of development and obsolescence. The law of international intellectual property regulation serves to reproduce and legitimize prior advantages and power relations. Of fundamental importance to the history of intellectual property is the concept of withholding (see also May 2000, and previous section). Withholding is the ability to restrict use and to control distribution. “When the resources required for social existence are scarce, the distribution of the rights to their use (property rights) becomes a central, if not the central, issue of political economy” (2006:37 emphasis in text). May and Sell contend that the history of intellectual property regulation demonstrates two things: a “persistent tension between those who seek to privately appropriate property in intellectual goods and those who seek its dissemination” and a dialectical fluctuation between “institutional settlement to contestation and dispute, and the re-imposition of settlement” (2006:38, 40). Though cast as timeless and universal, TRIPs is not undisputed or uncontested. It is only “the latest stage in the long political process of the expansion of intellectual property protection” (2006:41 emphasis in text).
May and Sell’s empirical history of intellectual property rights spans from fifteenth-century Venice through the post-TRIPs era. It is a history of a “complex yet identifiable relationship among three major factors” (2006:107). The development of intellectual property rights and regulations reveals “shifting ideas or conceptions of ownership, authorship, and invention[,]” which denote “what counts as property and who shall lay claim to it” (2006:107). That development also shows “changes in the organization of innovation and production and distribution of technology” (2006:107). Finally, that development also demonstrates that “institutional change is intimately connected to these shifting ideational and material forces” (2006:107). As such, the history of intellectual property rights and regulations is one wherein the “inherent tensions in the idea of intellectual property recurrently resurface under philosophical, technological, or institutional pressure” (2006:107).
In the pre-TRIPs era, the creation of the Berne and Paris Conventions saw considerable tension between the proponents of intellectual property protection and the proponents of free trade (2006:115). Similar to challengers of today’s international intellectual property regulatory regime, free trade proponents sought to abolish the then existing patent system arguing that the natural right to own intellectual property was a legal construction, that “just rewards” were not fairly distributed, and that patents inhibited rather than fostered invention (2006:115). Despite considerable resistance in this era – as with the emergence of TRIPs – proponents of intellectual property protection won the round. Private industrial interests played a significant role at the conferences leading up to the adoption of the Paris Convention (2006:117, 119). Specifically, prominent business leaders – such as Siemens and Edison – were “at the helm of this change” seeking higher patent protection (and insulation from competition) for their companies’ research and development (2006:118).
A central insight of May and Sell’s history of intellectual property rights and regulation is how revolutions in technology help shape contemporary intellectual property protection systems. The era of the Berne and Paris Conventions was the industrial revolution. During that period patents were of primary importance in raising capital and in eliminating competition to gain market dominance (2006:122). Similar to pharmaceutical corporations today, Thomas Edison was especially notorious for trying to capture broad patents as a way to control competition and to prevent others’ market entry. He was also known for using contracts requiring employees to sign over patent rights in work-related innovation. In addition, the industrial revolution era saw the emergence of corporate copyright ownership in works for hire. All of these legal configurations have become part of the normal course of business in modern intellectual property industries (2006:122, 126). Considerable power and control over intellectual property lay in the hands of corporate owners rather than in the hands of actual inventors. And, existing regulatory forms protected the rights of corporate owners over the public’s need or desire for access to intellectual property.
Like the key moments in intellectual property development that preceded it, TRIPs’s origins lie in legal and social changes over the latter part of the last century in the United States and in Europe. There were several important domestic changes in the US: a considerable relaxation of antitrust enforcement, an “increasingly expansive definition of patentable subject matter,” a confluence of intellectual property private interests (trademark, brand name, patent holders), intensified private industry lobbying and legislative writing, and case law rulings that put the “public policy of supporting patent rights on an equal footing with the public policy of supporting free competition” (2006:139–45 emphasis in original). The European Union underwent similar internal changes, the high watermark being the establishment of sui generis protection for databases, attainable with minimal effort and permitted to be renewed “without end” (2006:148–9).
The atmosphere of stronger intellectual property rights and protection at home forged US and EU approaches toward the international regulation of intellectual property, carrying directly into TRIPs. TRIPs’s bent in favor of strong private ownership of intellectual property is manifest. All WTO members are required to operate under the same set of TRIPs principles and minimum standards for the recognition and protection of intellectual property rights. The requirement of applying the WTO’s dispute settlement mechanism to any international disputes regarding the undertakings within TRIPs enhances the enforcement aspect of protection (2006:175). Linking intellectual property rights to international trade issues at the WTO severely impacts states’ sovereign abilities to domestically regulate intellectual property (2006:175). May and Sell contend that the strong international intellectual property regulatory system under TRIPS is rooted in the norms of treating knowledge as property, and of private ownership of knowledge, with its emphasis on the “development of knowledge as an individualized endeavor,” appropriately rewarded (2006:175).
May and Sell argue that the current international intellectual property regulatory system has gone too far in the direction of private protection. The “solidification” of this latest regime has disposed the law very squarely in favor of the corporate ownership. Before TRIPs, corporate intellectual property owners had to tolerate a degree of piracy, leakage, and copying as a consequence of the wide national variation in intellectual property protection of the pre-TRIPs era. Today, corporate intellectual property owners operate with the most expansive and comprehensive intellectual property protection, ever (2006:198). The stridency of the TRIPs regulatory system is having the effect of stifling innovation – contrary to the justificatory schemata marshaled in support of the system. May and Sell contend that a more equitable balance between private reward and public access must be restored (2006:198). Despite the ascendency of the private over the public, they remain hopeful for change. As disparities between “perceived reality (both technological and political) and the narrative of the previous (institutionalized) settlement become wider, so the pressure for change grows and the defense becomes more fervent” (2006:37). And, as contradictions between the actual effects of TRIPs’s operation and the narratives used to justify its regulatory system become sharper and more obvious, contestation will increase as will openings for change (2006:40–1).
Like the previous settlements in intellectual property rights and regulation that preceded it, TRIPs is an institution subject to alteration as changes occur in political and social relations, power capabilities, ideas, and in technology. TRIPs is being challenged both by bilateral moves to further enhance intellectual property rights protection and a growing global movement questioning prevailing intellectual property claims (2006:161). As the African HIV/AIDS crisis and subsequent Doha Declaration demonstrate, states and populations are bristling at TRIPs’s stringent standards (2006:162). And, this area of resistance that remains within states’ domestic sovereignty may operate in times of crisis to hasten a return to a system more akin to the national governance of intellectual property in the pre-TRIPs era, which allowed developing countries more flexibility in relation to intellectual property owners’ interests (2006:199).
Implications for Development
Development theorists have examined the practical implications of intellectual property regulation under international law. These scholars echo critical theorists’ assertions of TRIPs as a watershed moment. Their concerns, however, center on the domination exercised by developed countries over developing countries within the current international intellectual property regulatory system. Of particular importance are international impositions into developing countries’ national legal systems via TRIPs, and efforts of developed countries to extract from developing countries intellectual property concessions over and above those contained in TRIPs.
The prevailing international intellectual property regime is viewed by development theorists as negatively impacting developing countries on several levels – economic, social and welfare. African states’ struggles with TRIPs obligations and their populations’ need for AIDS/HIV treatments are well documented (see Shadlen 2007b; Hunter 2003). But, developing countries’ access to intellectual property and products is not a one-off issue. Through its requirement that WTO members domestically implement its minimum standards, TRIPs has operated to solidify developing countries’ relative subordinate position in the global economy. This condition leaves developing countries little room to maneuver for advancement. Pharmaceutical access is an on-going intellectual property issue for developing countries. It also illustrates developing countries’ overall difficulty with the prevailing international intellectual property regulatory regime. Lanoszka (2003) has examined global pharmaceutical policies based on TRIPs protection for developing countries, both as a particular issue and as an illustration of the broader difficulties TRIPs creates for developing countries. TRIPs has effectuated the condition of virtual monopoly for multinational pharmaceutical companies. This has enabled pharmaceutical companies, through TRIPs-sanctioned patent practices, to attempt to maintain a certain level of global drug pricing (2003:183). As seen with the HIV/AIDS crisis, that level of drug pricing was untenable in developing states given the drastic income differentials. In relation to HIV/AIDS treatment access, developing countries’ efforts to modify TRIPs’s effects were successful (the Doha Declaration). TRIPs’s overall biases, however, remain.
Like the critical theorists, Lanoszka contends that, in its predisposition toward private ownership of intellectual property, TRIPs has solidified the existing global socio-economic order. Developing countries maintain an overall suspicion that TRIPs “is a component policy of technological protectionism intended at consolidating an international division of labor where the industrialized nations generate innovations and developing countries are the market for the resulting products” (2003:182 (citations omitted)). The current international intellectual property regulatory regime under TRIPs operates to “create powerful monopolies that control the market for often essential knowledge-based products” (2003:182). Moreover, TRIPs has effectively created “an extensive mechanism for policing” the domestic intellectual property laws of all WTO members” by placing all WTO members’ domestic intellectual property laws “under the jurisdiction of the WTO dispute-settlement system” (2003:182, 187). Development theorists and developing country actors remain concerned that “commercial interests protected by intellectual property rights may be given primacy over other of society’s interests” (203:194).
Looking at the case of software, Shadlen (and co-authors) assert a “new international political economy of intellectual property” resulting from the current intellectual property regulatory regime’s practical impacts on developing countries’ domestic sovereignty (Shadlen et al. 2005). TRIPs creates “new global obligations for the treatment of intellectual property [which] are transmitted from the international to the national level,” and for which, developing countries are considerably ill-equipped (2005:46). The key to understanding this condition is the practical aspect of enforcement. To comply with the domestic obligations of their international obligations under TRIPs, developing countries face difficult trade-offs (2005:50). They may be disinclined to legally favor intellectual property producers (most often foreign) over users owing to negative welfare effects, as implementing a fully TRIPs-compliant intellectual property system domestically is likely to be much more costly than beneficial (2005:50). Developing countries’ already difficult position is compounded by pressures from developed countries to create TRIPs-plus conditions through regional and bilateral trade agreements (Shadlen 2007a). Such agreements offer “market access above and beyond what is available in the WTO in exchange for [intellectual property] practices that are above and beyond what is required under TRIPs” (2007:173). Though TRIPs is stringent, there remains a degree of flexibility for developing countries, though not the flexibility of the pre-TRIPs era. Regional and bilateral agreements eliminate even the minimal flexibilities under TRIPs (2007:173). To offset developed country efforts to gain TRIPs-plus concessions, Shadlen suggests developing countries work within the WTO dispute resolution mechanism to edify the existing international intellectual property regime (2007a:174).
Taking a step further than Shadlen and Lanoszka, Rahmatian explicitly casts TRIPs as a legal neo-colonialism (2009). He describes TRIPs as a framework of legal rights, which perpetuates domination of the developing world by the developed world, through allowing economic penetration and the protection of developed countries’ property rights (2009). He dismisses TRIPs’s provision for protecting traditional intellectual property as merely another aspect of neo-colonialism. In contrast, Tuttle et al. have found that “copyright-related capital” positively contributes to a country’s development (harmonization of copyright protection between countries in bilateral trade in copyright industries) (2009). Overall, however, the development approach focuses on TRIPs’s very costly requirements upon developing countries’ domestic legal structures. Such costs, development theorists generally claim, more often than not work to prevent developing countries from surmounting current global socio-economic distributions.
Other Disciplines: Legal and Economics
Though this essay is not designed or intended to be a review of international law writ large, it is helpful to have some understanding of how intellectual property under international law has been treated in other disciplines. To that end, this section is a very brief sampling of several broad themes within legal and economics scholarship on intellectual property regulation under international law. Regarding legal scholarship, a database search of legal journals and periodicals reveals a vast array of articles on myriad aspects of intellectual property regulation under international law. Three broad themes stand out: concerns about practice and practical applications (i.e., practice tips, reviews of cases and WTO decisions); concerns about policy aspects and consequences of intellectual property law; and exploration of the philosophical underpinnings of the law.
There is always a very practical aspect to the majority of legal scholarship. Legal scholarship on international intellectual property regulation is no different. Legal practitioners must ably navigate the international intellectual property regulatory regime to best serve their clients. A primary concern for practitioners is dispute settlement under TRIPs and the WTO. Lowenfeld and Dreyfuss lay out issues likely to be encountered in dispute settlements of intellectual property matters in light of potentially contravening purposes of TRIPs and of GATT writ large (Lowenfeld and Dreyfuss 1997). Especially problematic is the difference between intellectual property and other trade matters under GATT (1997:281). Intellectual property protection – copyrights, patents, marks – limits public access; and, prior to the GATT Uruguay Round and emergence of TRIPs, it was considered “anti-competitive” (1997:280). In addition to their practice concerns and recommendations, Lowenfeld and Dreyfuss express the same concerns regarding the private aspects of TRIPs as do some of the international political economy theorists discussed in the previous section. In particular, they see intellectual property controversies between states as “likely to be a continuation, and a surrogate, for controversies between firms” (1997:332). And again, like some of the international political theorists discussed in the previous section, Lowenfeld and Dreyfuss warn that “imposing a level of protection that was not bargained for (and is not expressly stated in the Agreement) may […] enrich current rights holders […] [and] work hardship on individual states” (1997:333).
Another area of concern for legal practitioners is how TRIPs interfaces with EU competition law and other agreements, like the Convention on BioDiversity. Articles on these issues offer practice advice on matters such as compliance with treaties’ conflicting provisions or requirements, or conflicting contract provisions (see, for example, Ghosh 2009; Ritchie 2008–9; Rowe 2008). Other articles offer updates of WTO decisions, EU case law, US case law and developments in the Chinese legal system (see, for example, Jianming 2009; Lovett 2008; Nihoul 2009).
A further theme in legal scholarship on intellectual property regulation under international law is the policy aspects of such law. Legal scholarship has not been oblivious to the negative human consequences of TRIPs, especially in regard to pharmaceuticals access for AIDS/HIV treatment. Many articles discuss developing countries’ options for accessing pharmaceuticals in crises like the HIV/AIDs epidemic. Some address compulsory licensing; others address recent amendments to TRIPs (art. 31) designed to ease pharmaceutical access (see e.g., Ho 2009; Supperamaniam et al. 2009). Another prominent area of policy concern is in the environmental arena, particularly the patenting of life forms and biopiracy of developing countries’ indigenous resources (see, for example, de Werra 2009). An additional area (albeit a smaller one) of legal scholarship on intellectual property regulation under international law explores its philosophical premises, or sources of law. These legal scholars have, like international political economy critical theorists discussed in the previous section, examined the roots of intellectual property as property, as well as issues of the commons and enclosure in relation to intellectual property, its regulation and protection (see, for example, Mandel 2008; Beckerman-Rodau 2009; Munzer 2009).
As with legal scholarship concerning intellectual property regulation under international law, economics scholarship on this topic is also vast. The following is a brief sampling of examples of treatment the topic has received in the economics discipline. By necessity this discussion excludes much. Some economists’ treatment of the topic in the literature tends to assert a more positive overall role played by intellectual property regulation under international law. Despite inherent conflicts between the monopoly power that is enshrined in intellectual property protection and the demands of free trade, some economists contend that TRIPs’s effects are generally beneficial (Maskus 2000). The outlook is optimistic that liberal economic (trade) policies and integration into the global economy will operate to improve the status of developing countries (accompanied by considerable qualifications) (Maskus 2005). Though costly to developing countries in the short term, in the long term TRIPs should prove advantageous to these countries if other measures for improving developing countries’ progress are also adopted.
Other economists have taken a more critical, albeit qualified, view of intellectual property rights and regulation. Though intellectual property rights are acknowledged as contributors to spurring innovation, some economists contend that intellectual property rights have been inappropriately over-emphasized as “the” avenue to stimulate innovation (see Adkisson 2004). Current intellectual property rights and regulations are also viewed as distorted (see Romer 2002). In particular, intellectual property is problematic as it extends downstream licensing, wherein an intellectual property owner’s control is exercised after purchase (see Boldrin and Levine 2002).
Potential Avenues of Inquiry
TRIPs represents a watershed moment in the evolution of international intellectual property regulation, especially regarding its implications for states’ domestic sovereignty. Several questions are worth considering as areas of future exploration and analysis. First, as over a decade has passed since its inception, has TRIPs created a legal/institutional structure wherein the private rights/public interest debate has been shifted irrevocably to the “private” side? Will TRIPs endure largely intact, leaving various interests to squabble over mere scraps? Second, alternatively, has TRIPs generated enough of a reaction in favor of public access to knowledge and information to liberate “intellectual property” from current legal confines? Third, developing states, African governments particularly, have been instrumental in softening the current regime in the face of the HIV/AIDS crisis. After successfully gaining concessions from pharmaceutical conglomerates, have the coalitions aimed at changing the current international intellectual property regime endured? To what extent, if any, are there countervailing private forces powerful enough to counter the private forces that originated and maintain TRIPs?
Finally, more than any international intellectual property agreement preceding it, TRIPs reaches into and dictates states’ domestic legislation regarding intellectual property rights and regulation. To the extent TRIPs can claim universality, its universality appears to be a product of imposition rather than consensus. And, though state sovereignty has always been flexible and permeable – contextually and temporally waxing and waning – it is a practical and enduring concept. The end of the state is a recurring theme in the broader international political economy and international relations disciplines. Does TRIPs represent a truly mortal blow to state sovereignty as we have known it? Could TRIPs really mean the end of the state?
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Shadlen, K.C. (2007a) Intellectual Property, Trade, and Development: Can Foes Be Friends? Global Governance 13, 171–7.Find this resource:
Shadlen, K.C. (2007b) The Political Economy of AIDS Treatment: Intellectual Property and the Transformation of Generic Supply. International Studies Quarterly 51 (Sept.), 559–81.Find this resource:
Shadlen, K.C., Schrank, A., and Kurtz, M.J. (2005) The Political Economy of Intellectual Property Protection: The Case of Software. International Studies Quarterly 49, 45–71.Find this resource:
Shiva, V. (2001) Protect or Plunder? Understanding Intellectual Property Rights. London: Zed.Find this resource:
Sterckx, S. (2004) Patent and Access to Drugs in Developing Countries: An Ethical Analysis. Developing World Bioethics 4 (1), 58–75.Find this resource:
Supperamaniam, M., Alavi, R., and Gee, L.H. (2009) The Implications of TRIPS to the Pharmaceutical Sector and Access to Medicine: Malaysian Experience. Asian Journal of WTO and International Health Law and Policy, 4(Mar.), 225.Find this resource:
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Links to Digital Materials
World Trade Organization: www.wto.org, accessed March 16, 2009.
World Intellectual Property Organization: www.wipo.int/portal/index.html.en, accessed March 16, 2009.
Trade Related Aspects of Intellectual Property Rights: www.wto.org/english/tratop_e/TRIPS_e.htm, accessed March 16, 2009.
Intellectual Property Watch: www.ip-watch.org/weblog/, accessed March 16, 2009.
Essential Action: Access to Medicines Project: www.essentialaction.org/access/, accessed March 16, 2009.
Third World Network: www.twnside.org.sg/index.htm, accessed March 16, 2009.