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     geopolitics of IP

This page looks at the 'geopolitics' of intellectual property.

It covers -

• orientation
• principles
• free-riding and flows
• practice
• a New Information Order

The 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?

    orientation

Paul Goldstein's excellent International Copyright: Principles, Law & Practice (New York: Oxford Uni Press 2001) comments that

Human 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 world.

Philip Altbach, in Copyright & Development: Inequality in the Information Age (Chestnut Hill: Bellagio 1995), comments that

There 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.

1999 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).

    principles

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) and Carolyn 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 introductions.

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

Those 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 to information

The paper on North-South Conflicts in Intellectual Property Rights by Vandana Shiva of the Research Foundation for Science, Technology and Natural Resource Policy blithely declaims that -

Anything short of stopping biopiracy through reforming TRIPs is participation in a crime against nature and the poor

and 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 -

A 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

Competition 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.

It 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.

    practice

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 Treaties (PDF). 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 (PDF) by Paul Goldstein, noting that

The 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 norms.

Deborah 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 2001 analysis 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 2003 paper 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 perspective.

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 (txt) 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, Siva Vaidhyanathan's 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 and overview 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 guide.

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 (here).

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