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GLOBAL PROPERTY RIGHTS IN INFORMATION: The story of TRIPS at the GATT
Abstract
The paper tells the story of how the US managed to secure an agreement, which heavily favoured it, on intellectual property at the GATT. This agreement has important implications for global information flows. Understanding this event, the paper argues, will help us to understand some of the mechanisms which operate to bring about global regulatory institutions. Coercion of some kind will be fundamental to the constitution of global regulatory orders.
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NOTES AND REFERENCES
S. Ricketson, The Law of Intellectual Property, Law Book, Sydney, 1984, p. 860 and p. 63.
GATT refers to the General Agreement on Tariffs and Trade.
See the Agreement on Trade-Related Aspects of Intellectual Property Rights contained in Annex 1C of the Final Act Embodying The Results of The Uruguay Round of Multilateral Trade Negotiations, Marrakesh, 15 April 1994.
See V. Shiva, Monocultures Of The Mind, Third World Network, Penang, 1994.
For example, Article 33 of TRIPS raises the patent term to 20 years. Countries will also be obliged to have an extensive system of trade secret protection. For a full discussion see UNCTAD, The Outcome of the Uruguay Round: An Initial Assessment, Supporting Papers to the Trade and Development Report, United Nations, New York, 1994, chapter 8.
For a discussion of the new dispute resolution mechanism see A. F. Lowenfeld, ‘Remedies Along With Rights: Institutional Reform In The New GATT’, The American Journal Of International Law, 88, 1994, pp. 477-488.
For the economics see A. Subramanian, ‘The International Economics of Intellectual Property Right Protection: A Welfare-Theoretic Trade Policy Analysis’, World Development, 19, 1991, pp. 945-956. On the use of patents to form international cartels see M. Costello, “The Tetracycline Conspiracy: Structure, Conduct and Performance in the Drug Industry’, Antitrust Law & Economics Review, 1, 1968, pp. 13-44.
A. Bogsch, Brief History of the First 25 Years of the World Intellectual Property Organization, WIPO Publication, Geneva, 1992.
For example, Pfizer's net income went from $103.4 million in 1972 to $800 million in 1990. Its return on equity was almost double that of the median return for Fortune 500 companies. See, ‘Pfizer: Protecting Intellectual Property in a Global Marketplace’, Harvard Business School, 1992, p.3.
The causes of falling competitiveness were not however, in the beginning, attributed to poor intellectual property protection. See the discussion by H. Ullrich, ‘GATT: Industrial Property Protection, Fair Trade and Development’, in F. K. Beier and G. Schricker (ed.), GATT or WIPO? New Ways in the International Protection of Intellectual Property, Max Planck Institute for Foreign and International Patent, Copyright, and Competition Law, Munich, 1989, pp 131-132.
P. Kennedy, The Rise and Fall of the Great Powers, Unwin Hyman, London, 1988.
J. Bhagwati, ‘The Diminished Giant Syndrome - How Declinism Drives Trade Policy’, Foreign Affairs, 72, 1993, p. 22.
Like all public myths it had some basis in reality. Transistor technology had been patented by AT&T, but under US antitrust law it was required to issue patent licences to qualified manufacturers. The Japanese company Tokyo Tsushin Kogyo Kabushiki Kasha (eventually to be known to the world as SONY) was granted a licence by AT&T. The Japanese, in other words, acquired this US technology legitimately. See R.J. Barnet and J. Cavanagh, Global Dreams, Simon and Schuster, New York, 1994, pp. 46-47.
See W. Max Corden, ‘The revival of protectionism in developed countries’ in D. Salvatore (ed.), The New Protectionist Threat To World Welfare, North-Holland, New York, Amsterdam, London, 1987, p. 45 at pp. 61-64.
Interview with Mr Emery Simon, former US Trade Negotiator, now with Alliance to Promote Software Innovation, Washington, 22 April 1994.
Information provided by M. W. Hodin, Vice President - Public Affairs, Pfizer, New York, at an interview on 23 September 1994, New York.
Unpublished paper, Recommendations of the Task Force on Intellectual Property to the Advisory Committee for Trade Negotiations, March 1986, p.1.
Problem countries were Singapore, Taiwan, Indonesia, Korea, Philippines, Malaysia, Thailand, Brazil, Egypt and Nigeria. The GSP operates under section 502 of the Trade Act of 1974, as amended.
On the link between property, externalities and societal evolution see, H. Demsetz, ‘Toward a theory of property rights’, American Economic Review, 57, 1967, pp. 347-359.
The linkages between intellectual property and trade appeared in the Caribbean Basin Economic Recovery Act of 1983, the Generalized System of Preferences Renewal Act of 1984, the International Trade and Investment Act of 1984 and the Omnibus Trade and Competitiveness Act of 1988. A full discussion of the legal detail of each of these Acts is beyond the scope of this paper. Basically the idea was that trading benefits would only flow to countries if they provided effective and enforceable intellectual property protection.
An argument used by the South Koreans was that copying the work of an artist was in their culture a form of flattery.
See C. Raghavan, Recolonization: GATT, the Uruguay Round and the Third World, Third World Network, Penang, 1990. See also C. Raghavan, ‘Recolonization: GATT in its historical context’, The Ecologist, 20, 1990, pp. 205-207.
ex parte searches are searches of the defendant's premises ordered by the court after having heard only the applicant for the search order.
The IIPA is probably the single most important copyright lobbyist in the world. It is an umbrella organisation consisting of eight trade associations: American Film Marketing Association, the Association of American Publishers, the Business Software Alliance, the Computer and Business Equipment Manufacturers Association, the Information Technology Association of America, the Motion Picture Association of America, the National Music Publishers’ Association and the Recording Industry Association of America.
Interview with Eric Smith, Executive Director and General Counsel, IIPA, 25 October 1993, Washington.
See, for example, IIPA 1993, Special 301 Recommendations And Estimated Trade Losses Due To Piracy, Submitted to the United States Trade Representative on February 12, 1993.
Interview with Eric Smith, Executive Director and General Counsel, IIPA, 25 October 1993, Washington.
Information provided by the President of the Korean Intellectual Property Research Society, 28 July 1994.
Interview with Robert W. Holleyman II, President, Business Software Alliance, Washington, 20 April 1994.
Information provided by Professor Dennis Pearce, member of the Copyright Law Review Committee.
Interview with Mr Michael Keplinger, US negotiator at TRIPS, 27 October 1993, Washington.
Many US trade retaliations would have been GATT illegal. See R. E. Hudec, ‘Dispute Settlement’ in J.J. Schott (ed.), Completing the Uruguay Round, Institute for International Economics, Washington DC, 1990, p. 180, at p. 198.
See Basic Framework of GATT Provisions On Intellectual Property, Statement of Views of the European, Japanese and United States Business Communities, June, 1988, The Intellectual Property Committee, Keidanren, UNICE, pp. 11-12.
See Intellectual Property Committee release, June 14, 1988.
IPC release June 14 1988.
IPC release June 14 1988.
Interview with David Hartridge, Director, Group of Negotiations on Services Division, GATT, 7 October 1993, Geneva.
On enclave committees see, M. J. Powell, From Patrician to Professional Elite, Russell Sage Foundation, New York, 1988, chapter 4.
Information provided by Professor Song Sang Hyun, Seoul National University, Korea, 28 July 1994.
Chapter One, Article 102 (d) of NAFTA states that one of the objectives of the Agreement is to “provide adequate and effective protection and enforcement of intellectual property rights in each Party's territory”.
For an excellent survey see J. Elster, Nuts and Bolts, Cambridge University Press, Cambridge, New York, 1989.
For the use of such models see R. O. Keohane, After Hegemony, Princeton University Press, Princeton, New Jersey, 1984.
See C. Tilly, Coercion, Capital, and European States, AD 990 - 1990., Basil Blackwell, 1990.
N. Machiavelli, The Prince, (G. Bull trs.), Penguin, 1961, chapter 14.
Keohane, op cit, pp. 32-33.
Interview with Richard Lehmann, Director of Public Affairs Governmental Programs, IBM, Washington, 27 September 1994.
Interview (by John Braithwaite) with Lars Arnell, Chairman of the TRIPS negotiations at the GATT, 30 July 1994.
On legal entrepreneurship see M. J. Powell, ‘Professional Innovation: Corporate Lawyers and Private Lawmaking’, Law and Social Inquiry, 18, 1993, 423.