International Intellectual Property Shelters Support a “Basic Needs Approach” to IP, by J. Janewa Osei-Tutu
My thanks to Chris Walker for organizing this symposium to facilitate this conversation about Sam Halabi’s new book, Intellectual Property and the New International Economic Order, which has been published by Cambridge University Press. I enjoyed reading this book, and I will be keeping a copy on my shelves. For scholars who are interested in intellectual property (IP) and development, or IP as it relates to social justice or wealth distribution, this book is worth reading.
This post will focus on one of the points that I found most interesting in the book. This is the argument that, despite the creation harmonized global intellectual property standards and the attendant effects, the “New International Economic Order (NIEO) is slowly materializing.” (Preface, p.x) Halabi makes an important contribution by illustrating how international IP regulatory shelters have been effective in supporting human development and helping to achieve the NIEO. (p.209)
The concept of shelters implies, however, that IP rights are an obstacle to wealth redistribution and that it is the shelters from IP where progress can be found. While there is some truth to this argument, it is, in my view, important for IP and development scholars to insist that IP, like trade regimes, should be tools for human progress and not just for corporate gain. As I have argued elsewhere, trade-based IP should itself – not solely in exceptions or regulatory shelters – promote human progress, which includes promoting human development objectives, such as health and education.
This book presents a complex and sophisticated argument that addresses international law as well as multiple disparate areas of intellectual property law, including patents, plant varieties, and trademarks. Halabi asks us to think about the international regulation of IP beyond what is found in international intellectual property agreements, such as the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS). IP rights may be protected though agreements such TRIPS, the Berne Convention for the Protection of Literary and Artistic Works, and the Paris Convention for the Protection of Industrial Property, but they are also regulated by non-IP agreement. The author identifies these IP shelters as they relate to distinct industries, including food, medicines and tobacco.
The “Upward Ratchet” is not all Upward
International IP scholars lament the upward ratchet of IP rights that has been occurring over the last several decades through multilateral and bilateral trade agreements and bilateral investment treaties. In particular, commentators have continued to express concern about the potentially negative effects of IP rights on human development and human rights. Yet, as Halabi points out, there have been counter-movements through an international regulatory or supranational regulatory system. (215-216). Indeed, we have seen counter-measures through various fora, and Halabi documents it quite well.
Still, I am not as optimistic that these counter-regimes, even if they can be characterized as some cohesive form of regulation, will be effective in redistributing wealth and creating balance within the context of international intellectual property law. In particular, many of these shelters involve “soft-law” or international policy frameworks that do not have enforcement mechanisms. These frameworks may play some role in the redistribution of wealth outside of the IP context. However, intellectual property law itself also need to be re-oriented and reframed to incorporate basic needs as part of its core and not only within “shelters.” Furthermore, if part of the NIEO involves influencing corporate behavior, then IP, much of which is owned by corporations, needs to be considered directly.
NIEO – Pushing Back on Corporations
Transnational corporations have more wealth than some states. This economic power enables them to have significant influence in the global arena. Indeed, the role of transnational corporations in successfully advocating for minimum global IP standards is well documented. Concern about the power of transnational corporations and their effects on developing countries was an impetus for the establishment of a New International Economic Order (NIEO).
The NIEO aimed to regulate the effects of transnational corporations on developing countries and to redistribute wealth and technology transfer. As Halabi explains at the beginning of Chapter 14, the NIEO identified transnational corporations as engaging in conduct that resulted in a transfer of wealth from the Global South to the Global North, from developing to developed countries. (p.41) The NIEO sought to address these trends, and this, according to Halabi, “is precisely what international intellectual property shelters have accomplished, or helped to accomplish.”(p.209)
This is a significant claim. While various international IP scholars see harmonized IP standards as limiting the ability of developing countries to achieve their development objectives, Halabi suggests that there is a system of counter-regulation that has effectively helped to achieve this redistribution of wealth. Halabi acknowledges that higher IP standards are not necessarily beneficial to developing countries. However, he describes and international regulatory regime that is comprised of what he characterizes as IP shelters. It is these IP shelters that have allowed developing countries to protect their basic human needs, even though they are bound by the harmonized IP standards found within the TRIPS Agreement and other trade agreements. Is this achievement because of harmonized IP rights and the shelters or despite them? As I understand the argument, there has been forward progress despite harmonized IP standards. If so, what does this mean? Is all the progress occurring in the IP shelters, and if so, is this because the global IP standards spurred innovative developments in the form of IP shelters? (see, i.e. discussion at pp.44-45) It seems that the key aspect of the shelters is the goal of promoting basic human needs, or human development.
IP and Development
Human development objectives are, it would appear, essential to the success of the NIEO. According to Halabi, it “is virtually impossible to overstate the influence of the Millennium Development Goals. The Goals have mobilized governments and businesses to contribute tens of billions of dollars to obtaining targets such as antiretroviral drugs and mosquito nets.”(P.70) The Millennium Development Goals (MDGs) have since been replaced by the Sustainable Development Goals (SDGs).
Even if the MDGs and the SDGs have been effective in the area of global health, they do not appear to have been particularly influential with respect to the development of international IP law. There some areas where basic human needs have affected international IP law, such as the Doha Declaration on TRIPS and Public Health, and the paragraph 6 Implementation Decision and subsequent amendment to TRIPS. These measures were directed at public health concerns. Still, the MDGs (now SDGs) are relevant to development and enforcement of international IP obligations. Their effects may be seen within the context of IP shelters, such as the Framework for Tobacco Control or in decisions, such as the recent World Trade Organization panel report in which the WTO panel upheld Australia’s plain packaging legislation that limited the use of trademarks and required graphic health warnings on cigarette packaging.
I would agree with Halabi’s observation that basic human needs tend to be protected outside the IP context – in IP shelters. However, as I have argued elsewhere, it is critical to ensure that human development is not seen as validly occurring only in IP negative spaces, but to also characterize human development as a core objective of trade-related IP law.
IP rights, whether patents, copyrights, trademarks, geographical indications or other forms of IP, are not inherently incompatible with a basic needs approach to human development. IP shelters may be essential and valuable in some instances. That said, copyrights and patents, for instance, should stimulate progress, while trademarks should help consumers make choices in the marketplace. The creation of regulatory “shelters” from IP in order to advance basic human needs suggests that that international IP rules are inimical to human well-being. For a form of legal regulation that is supposed to promote progress, this is far from ideal. It Illustrates the importance of reframing international IP law and policy to promote human flourishing.
Janewa Osei-Tutu is an Associate Professor of Law at Florida International University College of Law. She writes about international intellectual property, human development, and human rights. Her scholarship can be found on SSRN and Bepress. You can find her on Twitter @ResponsibleIP
This post is part of a symposium reviewing Intellectual Property and the New International Economic Order: Oligopoly, Regulation, and Wealth Redistribution in the Global Knowledge Economy, a new book by Sam Halabi, Associate Professor at the University of Missouri School of Law and Scholar at the O’Neill Institute for National and Global Health Law at Georgetown University. All of the posts can be read here.