Afterword to Intellectual Property and the New International Economic Order Symposium (Part I)
Let me begin by thanking both regular and special contributors to this symposium as well as extending an even heartier thanks to Patricia Judd, Rachel Kogan and particularly Chris Walker for the time and energy they dedicated to introducing and organizing it. The richness and care with which the essays were drafted demonstrate, I hope, the relevance of the argument I present. Certainly they show the importance of Notice and Comment as a forum for scholarly exchange on matters relevant to both national and global administrative law.
Given that so many leading scholars raised so many thoughtful issues and questions, I’ll aim with this response to address those concerns contributors shared and that are most readily answered with works in progress now underway. For the same reason, it is broken up into three parts.
Peter Conti-Brown’s review (“The Logic of Institutional Change: A Comment on Halabi’s Intellectual Property and the New International Economic Order”) extrapolates the book’s core economic concern – the relationship between firms and governments – to the literature on institutions and institutional change. Among other insights, Peter sees an overarching theme of governance and how structures of governance over the global economy shift below the surface.
These are the kinds of movements Peter expertly identifies as a general matter. In Peter’s important work, The Power and Independence of the Federal Reserve, he similarly isolates and analyzes federalism, leadership idiosyncrasy, inter-agency collaboration, path dependence, asymmetries in nominally equal governance structures, and separation of powers in the history and structure of the Federal Reserve to reach well-supported conclusions that serve as the basis for sensible policy recommendations.
Would that it were so here. There is no obvious answer to the problems in institutional change I identify in the book. Indeed, the antagonistic dyads I intentionally embed, some of which Peter identifies (nationalism and globalism, firms and governments, GATT and UNCTAD, monopoly and access, colonization and decolonization) lead, I argue, to global bureaucratic structures, themselves bricolages of the distributional contradictions they emerge to regulate.
My argument is, to be candid, inchoate and preliminary on the normative desirability of international intellectual property shelters. While some of them, like the World Health Organization’s Framework Convention on Tobacco Control, appear to effectively redistribute wealth from oligopolistic firms to populations in poorer countries (or at least stanch the unidirectional flow), others, like the International Treaty on Plant Genetic Resources for Food and Agriculture, appear to demonstrate evidence of industry capture as we would recognize it at the domestic level.
My subsequent work examines in more detail which shelters effectively redistribute wealth, and which consolidate oligopolies or otherwise serve their interests.
Katja Weckström Lindroos’s thoughtful review, (“Food for Thought”) argues that the factor I identify as facilitating the development of international intellectual property shelters – basic human needs approaches to development – is a poor substitute for national-level policy tailored to development objectives. Identifying three narratives (development, North-South, intellectual property), she analyzes both trends the circumvent the potential redistributional power of intellectual property shelters as I have identified them, and face significant barriers from global political forces.
She’s absolutely correct. To some extent, I address these issues elsewhere, arguing that the redistribution of global power toward population centers like Brazil and India has had a profound effect on the broader universe of trade and investment treaties. It remains the case, however, as I will highlight in the analysis of Daniel Hemel’s thoughtful post, that globalizing forces still largely funnel wealth out of poorer countries and into richer ones. Professor Lindroos uses EU legislation on trademarks and food labeling to emphasize her point, showing that technical requirements have a disproportionate effect on farmers from developing countries. To this I would only add that private sector standard setting has gone even further, imposing significant barriers to entry based on the demands of large food retailers.
I argue Professor Lindroos has identified a future area where an intellectual property shelter may emerge. One of the shelters I do not explore thoroughly but mention – a framework convention on obesity control – would inevitably regulate the aspects of food labeling she analyzes, and the consolidation in the global food retailing space seems likely to facilitate it.
Daniel Hemel’s post emphasizes the international relations literature that informs, at least to some extent, both of our perspectives on the topics we research. Professor Hemel canvasses the major traditions in IR theory – realist, institutionalist, liberal, and constructivist – and suggests that the argument I explore in the book provides a rich field for testing hypotheses generated from these theories. Professor Hemel knows the topic well, having written significant analyses of knowledge creation and the role of the nation-state, and concluded, I think, that scholars in general make too much of what international IP law actually accomplishes given domestic IP flexibility. I would only add to his current important work on the topic that domestic flexibilities themselves are shaped by bilateral treaties that constrain the flexibilities that might otherwise be available. Outside formal agreements, Peter Drahos has persuasively argued that outside the (often erroneously depicted) monolithic interests of developing countries in enhanced IP flexibilities are undermined by the actual behavior of their patent offices, which are more subject, for various reasons, to the influence of multinational firms and their host governments. All of this is just to Professor Hemel’s point, and, I hope, a salient argument of the book: that the behavior that realists would predict about international IP law (and would be correct in so-predicting) is complicated by phenomena better explained by institutionalists, liberal theorists, and constructivists. In later work, I intend to explain more thoroughly how each mechanism of regulation and redistribution works, hopefully informed by Professor Hemel’s insights on how those inquiries might be structured.
In my next post, I will address the important questions raised by Professors Pojanowski, Judd, Walker, and Osei-Tutu.