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geopolitics of IP
This page looks at the 'geopolitics'
of intellectual property.
It covers -
debate about 'North-South' issues for many encapsulates
tensions in thinking about copyright, digital or otherwise.
Who benefits from copyright? For how long? And how? Is
copyright the cutting edge of "information colonialism"
within advanced economies and within the third world?
Paul Goldstein's excellent International Copyright:
Principles, Law & Practice (New York: Oxford Uni
Press 2001) comments that
rights undeniably intertwine copyright, but the predominant
forces that have shaped the law are economic. Global
communities of economic interest among copyright owners
have been far more potent than ideology - or, for that
matter, than the preoccupations of individual nation-states
- in forming copyright doctrine. In a world of copyright
policymaking, a Canadian book publisher has far more
in common with a Japanese book publisher than it does
with a Canadian librarian who wants to make free photocopies
for library patrons. When, through the latter part of
the nineteenth century, British authors and publishers
pressed an isolationist United States to extend copyright
to English works, it was American authors and publishers,
not British readers, who rallied to their cause.
... Universal legal rules may mask profound economic
and political divisions. The division between economically
developed and developing countries is an example. ...
Experience and common sense teach that copyright cannot
correct such deep economic disparities, but experience
just as surely teaches that a too rigid insistence on
compliance with universal norms can exacerbate such
disparities, impoverishing the educational and political
development that is essential to the growth of markets
for literary and artistic works in those parts of the
Altbach, in Copyright & Development: Inequality
in the Information Age (Chestnut Hill: Bellagio 1995),
is, in reality, a difference between a Mickey Mouse
Watch, a Hollywood film, or even a computer software
program, on the one hand, and a scientific treatise,
on the other. Textbooks, technical reports, and research
volumes are subject to the same copyright regulations
as a novel by James Clavell. Those who control the distribution
of knowledge treat all intellectual property equally—and
are perfectly happy to deny access to anyone who cannot
pay ... it is important to realize that the international
knowledge system is highly unequal, and it can be argued
that those who are in control of the system - and specifically
copyright arrangements - have a special responsibility
to assist in the intellectual and educational development
of the Third World. There is a kind of OPEC of knowledge
in which a few rich nations and a small number of multinational
publishers have a great deal of control over how and
where books are published, the prices of printed materials,
and the nature of international exchange of knowledge.
IMF figures on global trade in royalties and licences
(including trademarks and patents) suggest that the US
received US$36.5 billion dollars from global exports,
with a net surplus of over US$23 billion. The UK - ranked
number two - had a surplus of US$900 million. No Third
World nation had a surplus.
Other studies have suggested that the export revenue of
US 'copyright industries' (films, computer software, print
publishing, music recording) was five times larger than
that of the pharmaceutical sector.
Aggregate overseas sales of copyright-protected products
supposedly amounted to $US79.85 billion in 1999, with
the overall value of 'copyright industries' to the US
GDP being around US$460 billion (significantly higher
than the aggregate GDP of the 100 least developed economies).
Ronald Bettig in Copyrighting Culture: The Political
Economy of Intellectual Property (Boulder: Westview
1996), Peter Drahos in the challenging A Philosophy
of Intellectual Property (Aldershot: Dartmouth 1996)
Deere's The Implementation Game: The TRIPS Agreement
and the Global Politics of Intellectual Property Reform
in Developing Countries (Oxford: Oxford Uni Press
2008) provide intelligent
Peter Yu's World Trade, Intellectual Property, and
the Global Elites: An Introduction (PDF)
and Endeshaw Assafa's Intellectual property policy
for non-industrial countries (Aldershot: Dartmouth
1996) offer from the left to complement Michael Ryan's
Knowledge Diplomacy: Global Competition & the Politics
of Intellectual Property (Washington: Brookings 1998)
and The New Economic Diplomacy: Decision Making &
Negotiation in International Economic Relations (Aldershot:
Ashgate 2003) edited by Nicholas Bayne & Stephen Woolcock.
Bruce Doern's Global Change & Intellectual
Property Agencies: An Institutional Perspective (London:
Pinter 1999) is also invaluable.
Drahos' collection Intellectual Property: Essays in
Law & Legal Theory (Aldershot: Ashgate 1999) and
Global Intellectual Property Rights: Knowledge, Access
& Development (Basingstoke: Macmillan 2001) -
co-edited with Ruth Mayne - can be read in conjunction
with the less demanding Intellectual Property: Moral,
Legal & International Dilemmas (Totowa: Rowman
& Littlefield 1997) edited by Adam Moore and Copyright
& Economic Theory: Friends or Foes (Cheltenham:
Elgar 2000) by Richard Watt.
Admirers of Drahos may enjoy David Koepsell's The
Ontology of Cyberspace: Philosophy, Law & the Future
of Intellectual Property (Chicago: Open Court 2000)
and Global Public Goods: International Cooperation
in the 21st Century (Oxford: Oxford Uni Press 1999)
edited by Inge Kaul, Isabelle Grunberg & Marc Stern.
There is a more radical view in Brian Martin's
'information liberationist' polemic - abolish the state,
free the information? - discussed elsewhere on this site.
Deborah Halbert's 1994 deconstructionist paper
on Computer Technology & Legal Discourse: The Potential
for Modern Communication Technology to Challenge Legal
Discourses of Authorship and Property argues that
disadvantaged by the legal discourse on intellectual
property rights are involved in a struggle to transform
the discourse, and to create their own identities ...
a legal discourse and telling our stories as ones about
property only conceal[s] inequalities [but] computer
mediated communication can hopefully begin to transcend
traditional notions of property ownership as it relates
on North-South Conflicts in Intellectual Property Rights
by Vandana Shiva of the Research Foundation for Science,
Technology and Natural Resource Policy blithely declaims
short of stopping biopiracy through reforming TRIPs
is participation in a crime against nature and the poor
calls the righteous to war against biocolonialism. A little
more nuance might be useful.
free-riding and flows
The World Bank suggested in 2002 that "full application"
of TRIPS would result in the following changes in annual
net receipts and payments for patent licenses and royalties
sense of the value of 'free riding' on creativity can
be provided by US copyright history. The US first national
copyright law (1790) provided protection of 14 year duration
... but only for those authors who were citizens or residents
of the new republic. The term was extended to 28 years
in 1831, but still restricted to US residents and citizens.
US publishers were thus able to 'cherry-pick' best-selling
publications in Europe - minimising risk by investing
in the unauthorised publication of books that had been
proven in the UK, Germany or other markets.
US publishers didn't seek the permission of their overseas
counterparts or make a payment to non-US authors. Instead
their agents in the UK purchased a copy of the most popular
works, which was then rushed to the US, transferred to
type and marketed as the property of the publisher. Such
piracy was accepted practice,
involving 'establishment' firms such as Harper & Sons.
As Hal Varian notes
was intense, and the first to publish had an advantage
of only days before they themselves were subject to
copying. Intense competition leads to low prices. In
1843 Dickens's Christmas Carol sold for six cents
in the US and $2.50 in England.
wasn't until the 1891 Chace Act that the US gave foreign
authors equal treatment, if the author's country accorded
reciprocal protection to the works of US authors. That
Act's "manufacturing clause" however inhibited
the import of foreign-printed books by denying copyright
protection unless the work was also printed in the US.
Susan Sell's Power & Ideas: North-South Politics
of Intellectual Property & Antitrust (Albany:
State Uni of New York Press 1998) echoes Bettig.
Her analysis is echoed in the often windy debate captured
by proceedings (PDF)
of the 2000 UNESCO Congress on Ethical, Legal & Societal
Challenges of Cyberspace, centred on claims that access
to information is a fundamental human
right in the 21st century.
There is a more succinct treatment in Suzanne Scotchmer's
2002 The Political Economy of Intellectual Property
Intellectual Property Rights In The Global Economy
(Washington: Institute for International Economics 2000)
by Keith Maskus takes a dissenting view.
Maskus' 2000 paper (PDF)
Lessons from Studying the International Economics of
Intellectual Property Rights provoked a lucid Comment
by Paul Goldstein, noting that
regular omission of copyright from economic analyses
of international trade parallels the comparatively limited
treatment copyright has received in analyses of single
economies, and probably for the same reason: the quaint
but surprisingly tenacious view that the conditions
surrounding the production and distribution of literary
and artistic works are more closely connected to untethered
creative genius than to the dour calculus of economic
incentives, costs and revenues.
... Copyright's practical economics separate it from
other intellectual properties, underscoring the danger
of applying to copyright the economics-based policy
prescriptions formulated for patents in the developing
world. To take just one example, the costs of plant
and infrastructure differ markedly between patent industries
and copyright industries. Few new pharmaceuticals are
cooked up in the course of a week's work or produced
in the back of a garage. Yet, modestly priced digital
equipment, along with some measure of talent, are all
that it takes today to produce a high-quality music
CD; thanks to the Internet, distribution costs of digitally
encoded content have fallen by orders of magnitude.
It is only a matter of time before audiovisual works
enjoy these same digital economies, and we can count
in years rather than decades the time that will pass
before creators (and pirates) in every country in the
world have the technical means to distribute the full
range of entertainment products. This difference in
capital requirements between the patent and copyright
industries explains why the standard riposte to rigorous
international patent norms - that it is cynical to claim
that they will enable the world's poorest countries
to develop vibrant patent industries - has less force
against the claims for rigorous international copyright
Halbert's Intellectual Property In The Information
Age: The Politics of Expanding Ownership Rights (Westport:
Quorum 1999) unfortunately covers copyright rather than
IP as a whole, frets about the patriarchal nature of IP,
and largely echoes Drahos and Bettig. Her dissertation
Weaving Webs of Ownership: Intellectual Property in
an Information Age is online.
It is complemented by Eric Schiff's historical study Industrialisation
Without National Patents: The Netherlands, 1869-1912;
Switzerland, 1850-1907 (Princeton: Princeton Uni Press
1971), the 1993 US National Academies report
on Global Dimensions of Intellectual Property Rights
in Science & Technology and Catalin Cosovanu's
of Intellectual Property & Technological Development
in Central & Eastern Europe.
Seth Shulman's Owning The Future: Inside the Battle
To Control the New Assets That Make Up the Lifeblood of
the New Economy (Boston: Houghton Mifflin 1999) and
E.Con: How The Internet Undermines Democracy (Toronto:
Stoddart 1999) by Donald Gutstein are arguments against
privatization of the IP 'commons' from a US and Canadian
perspective: shrill but thought provoking. Matthew Rimmer's
Franklin Barley: Patent Law & Plant Breeders'
Rights and The Future Control of Food: A Guide
to International Negotiations And Rules On Intellectual
Property, Biodiversity And Food Security (London:
Earthscan 2008) by Geoff Tansey & Tasmin Rajotte are
useful points of entry into literature about PVR; we have
pointed to other works here.
Ethical & Intellectual Property Concerns in a Multicultural
Global Economy (PDF)
by Sanjeev Phukan & Gurpreet Dhillon offers another
Questions about the scale and impact of copyright infringement
are highlighted in the final
page of this guide.
the New Information Order?
We've provided an introduction to debate about the 'New
International Information Order' or a 'New World Information
& Communication Order' (NWICO) here.
Peter Drahos' 2001 Bilateralism in Intellectual Property
examines use of bilateral investment treaties and intellectual
property ggreements by the US to establish more extensive
IP protection than required by TRIPS, with developing
countries being drawn into a complex multilateral/bilateral
web of intellectual property standards. Drahos comments
that "in some cases, these bilateral negotiations
are forcing developing countries into TRIPS-compliance
ahead of the timetable agreed in 1995. In other cases,
they are being used to intervene in the detailed regulation
of a developing country's economy."
Carlos Correa's Intellectual Property Rights, the WTO
& Developing Countries: The TRIPS Agreement &
Policy Options (London: Zed 2000), Michael Goldman's
Privatizing Nature: Political Struggles for the Global
Commons (New Brunswick:. Rutgers Uni Press 1998)
and Keith Aoki's 1998 paper
Neocolonialism, Anticommons Property, and Biopiracy
in the (Not-So-Brave) New World Order of International
Intellectual Property Protection offer a view of intellectual
property as information colonialism.
That is in line with John Tomlinson's Cultural Imperialism:
A Critical Introduction (Baltimore: Johns Hopkins
Uni Press 1991), the essays in Borrowed Power: Essays
on Cultural Appropriation (New Brunswick: Rutgers
Uni Press 1997) edited by Bruce Ziff & Pratima Rao,
Copyrights & Copywrongs: The Rise of Intellectual
Property and How It Threatens Creativity (New York:
New York Uni Press 2001) and Owning Culture (New
York: Peter Lang 2001) by Kembrew McLeod.
Fans of Michael Hardt & Antonio Negri's bizarre Empire
(Cambridge: Harvard Uni Press 2000) and Multitude:
War and Democracy in the Age of Empire (London: Penguin
Press 2004) may enjoy Johan Soderberg's 2002 Copyright
vs Copyleft: A Marxist Critique paper:
"to oppose copyright is to oppose capitalism",
with hackers as the vanguard of the revolution. Dot-communism
in the next generation?
For us there is more value in Edgardo Buscaglia's US
Foreign Policy & Intellectual Property Rights in Latin
America (Stanford: Hoover Institution 1997), William
Alford's sparkling To Steal a Book is an Elegant Offense:
Intellectual Property Law in Chinese Civilisation
(Stanford: Stanford Uni Press 1995), the incisive analysis
offered by Hugh Hansen and Peter Yu's 2001 paper
From Pirates to Partners: Protecting Intellectual Property
in the 21st Century.
Alford's 1997 NYUJILP article 'Making the
World Safe for What: Intellectual Property Rights, Human
Rights & Foreign Economic Policy in the Post-Cold
War World' is also of particular value.
Christopher Arup's The New World Trade Organization
Agreements: Globalizing Law Through Services & Intellectual
Property (Cambridge: Cambridge Uni Press 2000) is
of value as a supplement to Drahos & Braithwaite in
understanding international dynamics.
The US Trade & Tariff Act of 1984 specified
that "intellectual property inadequacies are an unfair
trade practice and constitute a basis for Section 301
proceedings", ie broadranging trade sanctions against
nations whose intellectual property legislation/practice
is considered to be inadequate. We've highlighted some
studies of piracy - a major concern for the software,
film and music industries - at the end
of this guide.
Use of 301 for a global "intellectual property hegemony"
has attracted attention. Apart from studies cited earlier
in this guide some points of entry are Nicolas Gikkas'
1996 International Licensing of Intellectual Property:
The Promise & the Peril paper,
the 2002 Special 301 report
from the US Trade Representative, Strategic Trade Policy
& the New International Economics (Cambridge:
MIT Press 1986) edited by Paul Krugman and The Externalization
of Domestic Regulation: Intellectual Property Rights Reform
in a Global Era, a 1996 paper
by Paul Doremus.
Roger Sandall's sardonic The Culture Cult - Designer
Tribalism & Other Essays (Boulder: Westview 2001),
Ernst Gombrich's The Preference for the Primitive:
Episodes in the History of Western Taste & Art
(London: Phaidon 2002), Londa Schiebinger's Plants
and Empire: Colonial Bioprospecting in the Atlantic World
(Cambridge: Harvard Uni Press 2004), Bronwyn Parry's
Trading the Genome: Investigating the Commodification
of Bio-Information (New York: Columbia Uni Press
2004) and Pascal Bruckner's The Tears of the White
Man: Compassion as Contempt (New York: Free Press
1986) question some of the North-South pieties. Particular
concerns regarding traditional knowledge and cultural
expression are highlighted on the preceding page of this
Apart from basic human rights agreements (highlighted
here) there have
been a number of statements about 'information divides'
and IP colonialism, such as the 2001 Declaration of
Havana Towards Equitable Access to Health Information
next page (P2P, music and