With this post, I continue my engagement with symposium contributors Professors Pojanowski, Walker, Osei-Tutu, and Judd and repeat my thanks for the time and care they took in reviewing the monograph. This is the second of three posts intending to address the criticisms and suggestions made during the symposium.
Jeff Pojanowski provides a superb overview of the text and ends with a crucial question: if international intellectual property law so oppressed populations in developing countries over the course of the 20th century, what accounts for the significant advances in development that have taken place virtually everywhere over the course of the same window?
The answer, as he notes, is more complicated than either a brief post or the entire book might address, but there are components of the answer in the book worth highlighting. First, the most important intervention, by far, in terms of promoting human development in developing countries over the course of the 20th century was the introduction and expansion of vaccinations against common childhood illnesses. As the World Intellectual Property Organization detailed in a 2012 report, there was virtually no vaccine patent activity until the latter part of the 20th century, a phenomena that probably has as much to do with the evolution of patentability criteria (new and emerging vaccine technologies involve complex subcellular innovation; older technologies largely involved killing or manipulating viruses and bacteria), the sources of innovation (universities and public health departments), and, perhaps, a general sense that something as important as vaccines should not be subject to the crude incentives intellectual property embody. Hence Jonas Salk’s response to Edward R. Murrow’s question, “who owns the patent to [the polio] vaccine?” to which he replied “Could you patent the sun?” Similarly, the Green Revolution largely succeeded because agricultural inputs like fertilizers and pesticides as well as high-yield hybrid varieties of seeds moved to countries like India, Mexico, Pakistan and the Philippines because they were in the public domain. The Green Revolution, of course, created pathways for later IP-protected inputs and seeds, as the book details, but development in agricultural sectors, and corresponding development, occurred because intellectual property claims did not represent a significant barrier.
Or so I argue. Professor Pojanowski is being modest when he says he “dabbles” in relevant topics. His work on private law theory raises important questions in the intellectual property context. Generally considered more public and administrative than contract, property, and tort, intellectual property law nevertheless implicates precisely the arguments he makes about the judicial role in the interpretation of statutes. The enforcement of international intellectual property law, almost everywhere statutorily codified, generally envisions a primary judicial role and it is a useful exercise to question if that requirement has indirectly strengthened regulatory capacity in developing countries in ways that law-and-development scholars would welcome.
Chris Walker probes the public-ness or private-ness of patent rights, and whether that determination, in turn, influences whether international intellectual property shelters are viewed as regulatory or deregulatory. It is a fair reading of Oil States, to be sure, that patents are public rights so far as Article III reach and Seventh Amendment rights are concerned, but the U.S. Supreme Court necessarily addressed the great deal of private law terrain surrounding those questions to get there. In that sense, international intellectual property law is less forgiving than domestic equivalents. It is fair to say that it has one eye on competitors and the other on governmental overreach (compulsory licensing of patents and copyrights as well as the regulation or prohibition of trademarks). The answer to Professor Walker’s question as I analyze it is that all patent, copyright, and trademarks (as well as other classes of intellectual property) derive from the sovereign (and not from a supranational source) and, with respect to competitors may very well be deregulatory in the way Professor Walker suggests. However, with respect to the sovereign itself, the shelters are most certainly regulatory, clawing back sovereign regulatory authority arguably given up in agreements nominally about trade and investment and doing so in highly concentrated sectors that affect core development interests.
Janewa Osei-Tutu argues that the primary concern with intellectual property law generally and international intellectual property law specifically should be the promotion of human flourishing. Whatever redistribution international intellectual property shelters have achieved, it is a poor substitute for placing human development at the core of the international intellectual property agenda, an idea she has persuasively defended. I agree with Professor Osei-Tutu 100% and encourage readers to consult her important work on the topic. As I noted in my response to Peter Conti-Brown’s post, I do not view this particular project as normative. That is, I do not promote international intellectual property shelters as a means by which poor populations or their governments may level the playing field. Rather, they are, in my analysis, economic phenomena that have arisen in response to sources of wealth disparity, primarily firms in globally consolidated markets relevant to basic human needs. In this sense, I view the book’s contribution as reinterpreting global treaties and treaty-like structures that have never before been viewed as a cohesive phenomenon. I certainly welcome the use of that analysis toward the development of more rational and fair law as Professor Osei-Tutu has elaborated it, not only for intellectual property law but for competition law as well.
Patricia Judd’s post moves in a slightly different direction, suggesting that analysis of all classes of intellectual property may do injustice to individual classes, like trademarks, that play a different, arguably less pernicious role. As to the general criticism, she is absolutely correct. Patents are justified by different rationales than copyrights which are in turn justified by different arguments than trademarks (although as I note in the book, there is abundant, conflicting evidence so as to be suspicious as to all of these justifications). In part, I justify aggregating these classes of intellectual property because that is precisely what firms and their sponsoring governments have done. The modern era of international intellectual property law, according to comprehensive historical accounts, began not with patents or copyrights, but with trademarks as Canadian, European, and US firms saw infringement of those as the primary threat to their competitiveness over the course of the 1970s. Trademarks became the Trojan horse for TRIPS, or so the history suggests, and therefore even though the rationales behind classes of intellectual property are different, the common claim to monopoly made by their proprietors flowed freely between them toward the end of strong, comprehensive international intellectual property provisions in investment and trade agreements. Moreover, it is in response to those aggregated agreements that shelters arose. Indeed, the first shelter, I argue, was a trademark shelter – the 1981 World Health Organization/UNICEF International Code on the Marketing of Breast-milk Substitutes.
Otherwise, I agree with Professor Judd’s analysis that it is theoretically possible that private enforcement of trademarks might serve public health ends. In several works, I elaborate a compensation regime that might steer trademark law in this direction and look forward to Professor Judd’s forthcoming article. Her terrific work, Toward a TRIPS Truce, played an influential role in my analysis of the copyright portion of the book, and I expect presages the balance her scholarship strikes with respect to private- and public-interest promoting aspects of intellectual property law.
In my final post, I will address contributions by Henning Grosse Ruse-Khan, Susan Sell, and Peter Yu.