The Global Turmoil in Intellectual Property by Susy Frankel and Daniel Gervais


Intellectual property is in global turmoil. This is not surprising. In many industrialized countries, ‘intangible’ assets make up 70% or more of the economy, and intellectual property rights (IPRs) are a way to create incentives to generate those assets and then to protect those assets. Susy Frankel and Daniel Gervais go on to discuss, that from a rather obscure and technical topic for a few specialist lawyers, intellectual property since the 1980s has progressively become a major focus of business strategists, trade negotiators and developmental economists.

The trade-related focus has been to write global rules for IPRs. The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) negotiated under the auspices the World Trade Organization (WTO) is such a set of IPR rules. There were many areas of disagreement, particularly between industrialized and developing countries. And because the divergences of view were deep at the time developing countries were given more time to comply. In fact, for all intents and purposes, the world’s 50 or so poorest countries still do not have to comply with most of the TRIPS Agreement even if they are or become WTO members. There were also disagreements between industrialized countries, for example between the United States and Europe. Some of this is reflected in incomplete outcomes (for example replacing a rule with a commitment to negotiate one at some future point in time) fuzzy language, and a lack of definitions of key terms, allowing countries to implement the Agreement in different ways. There were—and still are—significant differences on the protection of authors’ rights (seen in Europe as cultural and economic, but only the latter in the United States) and the protection of geographical indications (words like Champagne, Parmigiano, etc.) to name just those two.

Since the turn of the century, a number of developing countries have taken the view that ‘more time’ is not enough to adjust (or ‘calibrate’) their intellectual property regime. They focused their attention on flexibilities, such as limitations and exceptions, that countries may need to protect IPRs at a level and in a way that works for them, not so much as a group but individually. This led to the adoption of a comprehensive ‘Development Agenda’ at the World Intellectual Property Organization (WIPO). Other groups have also flagged the need for flexibility. Calls for flexibility led to the adoption at WIPO of a treaty in 2013 to allow exceptions to copyright rights for people who are blind, visually impaired or otherwise print disabled. A similar effort is underway for libraries and archives. These sorts of flexibilities are important for all countries, but they are too piecemeal. It’s doubtful if they really represent the kind of flexibility that is optimal to stimulate innovation (even of different kinds) around the globe.

The major IP-exporting countries have pushed in parallel for higher levels of protection and stricter enforcement of IPRs before national courts and at the border (when infringing goods are imported).   On the global stage, whether at WTO or WIPO, this has been difficult. Efforts to ‘harmonize’ global patent rules have basically failed and a push for a new treaty to protect broadcasters seems to have hit a stumbling block.

Efforts to increase protection thus shifted to smaller groups. Initially, there were ‘TRIPS-plus’ rules added to bilateral trade agreements, and in a few regional ones as well (such as NAFTA, the agreement between Canada, Mexico and the United States).   The next stage was to create groups of like-minded countries, an approach dubbed ‘country club’ (by Gervais). As with a country club, founding members write the rule book and then invite others to join, accepting the rule book as a condition of membership. This was the process used for the now defunct Anti-Counterfeiting Trade Agreement (ACTA). It was also used for the Trans-Pacific Partnership Agreement (TPP). Both those ‘trade’ agreements are perhaps best seen as intellectual property and trade agreements.

Even within multilateral organizations, like-minded groups tend to dominate. Developing countries have created a fairly unified front within WIPO and at the WTO (on some issues at least), and only the 28 WIPO members (out of 187 at the time) that were already committed to the protection of GIs were allowed to vote on the new version of the Lisbon Agreement (adopted in May 2015) that creates a registration system for GIs. This raised a number of questions, including who should pay to administer agreements that are only supported by a fraction of the membership.

9781783473427_1 The profound institutional and substantive shifts afoot matter a great deal. Without copyright or something like it, it may well be impossible for professional creators (such as songwriters or novelists), journalists and others to make a living, a major loss for everyone. Without a system to create market-based incentives for new drugs, the development of pharmaceuticals will be halted.   Yet that does not mean that the discussion on the proper scope and structure of copyright law, limits on patent rights and the development of alternative models should not continue. In the pharmaceutical field, an effort is underway (and visible in the TPP text) to add to and almost replace patent rights by preventing reliance on clinical data when approving a generic version of a pharmaceutical–whether or not it is still protected by patent. Exceptions to exclusive copyright rights in the online environment, including new licensing systems, are being considered. And the list goes on.

It would behoove every law school to teach intellectual property, both domestic and international, and to foster research in this area. In an ideal world, IP would be a mandatory subject. True, there is already quite a bit of IP research in much of the industrialized world–though not often enough with a true international focus. At its heart intellectual property impacts innovation, creativity and the control of knowledge assets. It’s the business of every country and part of the world and so all should contribute to the global conversation about the future of intellectual property.

Susy Frankel, is Professor at Victoria University of Wellington, New Zealand. Daniel Gervais is Professor at Vanderbilt University Law School, USA.

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One Comment on “The Global Turmoil in Intellectual Property by Susy Frankel and Daniel Gervais”

  1. Bashar H. Malkawi Says:

    The debate has been always between IP exporting countries and developing countries. The former wants higher level of IP protection and enforcement while the latter seeks flexibilities. Every trade agreement should try to strike a balance between these competing views. In reality, however, industrialized countries tend to incorporate their views in bilateral trade agreements with other countries such as the case of US-Jordan FTA. Bashar Malkawi


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