Professor Sunder, Spring 2010
International Intellectual Property & Development
Introduction
· Key terms:
o Public Good: A non-rivalrous and non-excludable good (can have a free riding problem because someone needs an incentive to develop the good to begin w/ b/c everyone can use it once it is developed) – e.g., information, the environment, nat’l security, etc.
o National Treatment: Essentially means that you treat foreigners & locals equally; i.e., if a state grants a right/benefit to its own citizens then it must also grant it to foreigners in the country
o Geographical Indication (GI): A name or sign used on products that corresponds to a specific geographical location or origin (e.g. a town, region, or country); can that the product possesses certain qualities, or enjoys a certain reputation, due to its geographical origin
o Least Developed Countries: Have a per capita incomes of less than $750 annually (~ 50 countries)
§ Additional criteria: weak resources such as health/edu; cannot have $75 M or more; don’t have to meet TRIPS deadlines until 2013
o Technical Assistance: Giving developing countries help to establish IP offices (patent, ©, etc)
· IP Theories:
o Utilitarian Theory: IP should promote invention, creativity, and knowledge sharing
§ IP rights lead to more public benefit
o Labor theory: IP rights are a reward for your labor
§ This is the dominant European justification; US theory is more limited—wants to give just enough protection to promote IP
o Personhood: This is a type of moral right; it would attack someone’s personhood to take certain prop away from them — Most often associated w/ copyright
§ Expressly rejected by US courts b/c it would generally give stronger protection than existing US laws
· B/C creations all build upon each other, never really belong fully to one person
· AND B/C we pride ourselves as a country with free speech
o The First Amendment goes against strong personal rights in IP b/c if artists have strong moral rights it limits what other can do w/ the art
· The US respects art less than Europe does (must be able to parody Brittney Spears)
January 12: Overview of Law, Architecture, and the Development Debate
TRIPS (Agreement on Trade Related Aspects of Intellectual Property Rights)
· Background Info:
o Became effective Jan. 1, 1995
o TRIPS is an int’l agreement administered by the WTO (formed at the same time as TRIPS) à sets minimum standards for the IP regulation of WTO members (most every country in the world)
§ TIPS sets standards, WTO enforces
o Negotiated at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) in ‘94
o Introduced IP law into the int’l trade for the first time & remains the most comprehensive agreement on IP to date
o Goal: IP rights shall promote tech innovation & the transfer & dissemination of tech in a manner conducive to social and economic welfare & to a balance of rights and obligations
o In 2001, developing countries initiated a round of talks that resulted in the Doha Declaration b/c of concerns that developed countries were interpreting TRIPS too narrowly
§ Doha Declaration is a WTO statement that clarifies the scope of TRIPS & says that TRIPS should be interpreted in light of the goal “to promote access to medicines for all”
· Provisions address:
o Copyright, Geographical indications, Patents, Monopolies, Enforcement/Dispute Resolution, Etc (e.g., industrial designs, integrated circuit layout-designs, trademarks, confidential info)
Before 1995 & the WTO/TRIPS – The Berne Convention for the Protection of Literary & Artistic Works
· Background Info:
o The Berne Convention existed before the WTO/Trips
o BC is an int’l agreement that governs copyright; it was first accepted in Berne, Switz, in 1886
o Came about b/c countries were trying to harmonize their laws
o In general, IP rights are generally governed by Nat’l Treatment principles under the treaty
o Prior to BC, IP agreements were considered soft law b/c they lacked enforcement mechs
· General Provisions:
o Requires signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way as it recognises the copyright of its own nationals
o Required member states to provide strong minimum standards for copyright law
o Copyright under BC is automatic; it is prohibited to require formal registration
§ BUT when the US joined in 1988 it continued to make statutory damages & attorney’s fees only available for registered works
· Notes:
o The US originally refused to sign the BC
o The WIPO Copyright Treaty was adopted in 1996 to address the issues raised by information technology and the internet, which were not addressed in the BC
o Since almost all nations are members of the WTO, TRIPS requires non-members to accept almost all of the conditions of the Berne Convention
o As of September 2008, 164 countries are parties
General IP Discussion
· Is IP a tool or right?
o U.S. Copyright Clause: Art. I, Sect. 8, Clause 8 of the US Const (the © clause), empowers the US Congress to “[P]romote the progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
o So, IP is a tool to promote, BUT it also says that it is a development right
o This is unclear as of the first day
· Difference between Real Prop & IP
o IP is non-excludable & non-rival (two ppl can read the same book at the same time), while real prop is generally excludable and rivalrous
o IP right are more limited than real property rights b/c IP is a public good; b/c IP rights generally expire after a period of time & b/c there are more defenses to their use (like fair use)
· Background Info:
o The US has IP rights for utilitarian reasons
Jan 14 – Does IP Help or Hurt the Poor?
Jerome Reichman, Does IP Harm or Help Developing Countries?
· In sum: Abundant evidence shows that IP can help every country, but it must be properly managed
o Trade secret, unfair competition, trademark, etc laws benefit all countries b/c you can’t develop w/out them
o Also, TRIPS includes powerful incentives for mankind to innovate
o BUT, IP can hurt foreign sellers b/c it imposes terms that undermine the ability of entrepreneurs to enter & compete in the global marketplace
· Changes to the current IP system that would help developing countries:
o Developing countries need room to reverse engineer un-patentable know-how so they can adapt foreign goods to local conditions
§ Current developed countries didn’t have to form their development strategies in the presence of the high int’l standards in current existence
· In estimating the social cost and benefits of the emerging IP system, you have to differentiate among many groups of countries at different levels of development:
o Least Developed Countries:
§ Aren’t too negatively effected b/c they don’t have to meet IP standards until 2013
o High Income Countries Like India, China and Brazil:
§ Struggle to maximize the benefits and minimize the costs of IP rights
§ Have thriving cultural & high-tech industries, but their health sectors are struggling
§ Although they have mixed results, they have begun to obtain large numbers of foreign patents
o Other Countries at Low-Mid Income Levels:
§ Have more serious problems b/c there is a tech divide that is widened by the high rents that must now be paid to tech exporters AND by the absence of any int’l provisions would confer differential and more favorable treatment on developing countries
§ Must compete in markets for knowledge goods on roughly the same terms as ind countries
§ Even countries that don’t produce knowledge have to organize and maintain the defense of foreign IP owners ($$$)
§ AND developed countries continually press for stronger IP rights in these countries
· Developing countries in general:
o There is an inherent tension in TRIPS for developing countries b/c TRIPS requires nat’l treatment, but these countries also face political/other pressure to make sure their education & health systems can compete
· HIS VIEWs:
o we don’t need any more IPR standard-setting for no
ective of Freedom
o Freedoms are essential to Sen’s understanding of development.
o The denial of political and civil freedoms to promote economic development is unjustified, not only because it doesn’t promote total development, but also because political and civil freedoms are important on their own, to allow freedom of actions and decisions.
o Development includes freedom to access the open labor market.
o Many perspectives either defend or chastise the market mechanism. This provides a broader and more inclusive approach.
o Wealth is useful for the substantive freedoms it helps to achieve: the process and opportunity aspect of freedom.
o The freedom approach does not talk about income poverty but capability deprivations, similar to “quality of life” measures.
§ Ex. poverty as deprivation of basic capabilities, rather than merely as low income
§ developing and affluent societies:
§ Using freedoms as the definition, it is possible for development analysis to be relevant even in richer countries
· African Americans’ lower absolute lifespan in the United States compared with people in third world societies, such as China, Sri Lanka, or parts of India.
· There is a two-way relation btwn social arrangements to expand individual freedoms and the use of individual freedoms not only to improve lives but also to make the social arrangements more appropriate and effective.
Reading 2 – Martha C. Nussbaum, Women and Human Development
· Introduction:
o Principle of ea. person’s capabilities: basic social minimum
o Comparisons of life quality comparable to GNP comparison
o Goal: to move beyond the comparative use of capabilities to the construction of a normative political proposal that is a partial theory of justice
§ Capabilities as a foundation for basic political principles that should underwrite constitutional guarantees
· Comparison to Sen:
o Sen, instead of asking about people’s satisfactions or command of resources, asks about what they are actually able to do or be. Nussbaum wishes to take this argument a step further, asking how capabilities and the idea of a threshold level of capabilities can provide a basis for central constitutional principles that citizens have a right to demand from their gov’ts.
o Departure:
§ Sen nowhere uses the idea of a threshold, which is more important to Nussbaum’s proposal than capabilities generally. Sen has never attempted to ground the capabilities approach in the Marxian/Aristotelian idea of truly human functioning. He has never made a list of the central capabilities.
· *See more info on the collaborative outline if needed (about Central Human Capabilities)
Discussion
· Where does IP play into this understanding of development?
o Sen says that participation in the market is a mark of greater freedoms and can lead to greater agency, but which can also be manipulated to perpetuate unfreedoms. How does IP fit into the market? Is there room for IP in this discussion?
o Nussbaum talks about the capability to create self-expressive work under the right to senses, imagination, and thought. She also introduces the idea of control over one’s material environment. She mentions property outright: “Being able to hold property (both land and moveable goods), not just formally but in terms of real opportunity; and having property rights on an equal basis with others….”
