Globalization and Intellectual Property

Alexandra George

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351933070
• Edition: 1
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

Intellectual property laws have become intricately entwined with discussions about globalization. This volume deals with the politics, economics and effects of global intellectual propertization. It provides essays covering key issues including the international relations of global intellectual propertization, the TRIPS Agreement and the tying of intellectual property issues to international trade negotiations, contentions that global intellectual propertization is a form of post-colonial neo-imperialism, globalization's effects on intellectual property law's classic doctrines and rationales and the cultural effects of global intellectual propertization.

Part 1

The Politics and Economics of Global Intellectual Propertization

[1]

THE INTERNATIONAL RELATIONS OF INTELLECTUAL PROPERTY

W.R. CORNISH*

* This article is based on an inaugural lecture delivered in the University of Cambridge on 27 February 1992.

INTRODUCTION

INTELLECTUAL property is not a term with a standard meaning. Traditionally it was used to describe the copyright protection of authors and to distinguish this from industrial property, i.e., patents for inventions, industrial design rights, plant variety rights, trade marks and the like. Recently it has become an umbrella for copyright, rights related to it and the various forms of industrial property. The new generic grouping has been needed for a world where demand for these rights has risen to an altogether new pitch. In part this is the consequence of extraordinary advances in technologies which make recorded information easily and precisely reproducible; and partly it supports the quest of advanced economies to conserve superior knowledge as a weapon in international trade.

The subject is accordingly complicated and full of perplexities. This paper concentrates on one basic aspect of the international relations which seem increasingly to determine how it develops in order to meet new needs. The paper is addressed primarily to non-specialists, so it is desirable to make a few introductory points, which will be organised under three headings.

A. The Growth of Intellectual Property

When countries take off into industrialisation, at least under some variant of market economy, they accept the need for intellectual property rights as one legal underpinning of that process.¹ One common characteristic of all these rights is that individuals acquire power to stop others engaging in commercial conduct of a particular kind; they may be prevented from producing and marketing a patented machine, substance or process, a copyrighted book, film or picture; or they may be enjoined from selling goods or services using another’s trade mark or get-up. The rights are referred to as property, and in varying senses they are good against persons with whom no relationship exists.² They are “property” also because the word has reassuring associations quite at odds with “monopoly”; but—inescapably—exclusive rights to prevent other people from doing things are at least monopolistic in a legal sense, if not necessarily in an economic one.

B. National Character

Intellectual property rights exist as instruments of legal-cum-economic policy country by country. There may be supranational arrangements for the acquisition of these national rights, as is now the case with the European Patent Office in Munich.³ But no international and very few regional institutions yet grant rights which have a unified legal effect over more than the territory of a single nation state.⁴ Certainly the European Community has well-developed plans to introduce a patent and a trade mark operating throughout the Common Market.⁵ These will each become alternatives to national patents and trade marks. However, a certain hang-fire quality besets these projects, for all their value as symbols of the completed internal market.⁶

Because intellectual property has been so closely allied to national economic objectives there has been some tendency in each country to exclude nationals of other states from acquiring or retaining it. The tendency is most marked in relation to copyright, because its subject matter in particular does not incline recipient countries to pay out royalties to foreign owners.

This has meant that at a secondary, but highly important level, agreements have been necessary between states for the mutual recognition of intellectual property. At first there were bilateral arrangements which required strict reciprocity. But over the past century, the need has come largely to be satisfied through multilateral conventions. The two most basic of these—both with many countries around the world as members—have celebrated their centenaries over the past decade: they are the Paris Convention on Industrial Property (patents and designs, trade marks and unfair competition), originally of 1883; and the Berne Convention on Copyright (or more strictly Authors’ Rights) of 1886. Both are now administered by the UN organ in the field: the World Intellectual Property Organisation (WIPO). These Conventions are at the heart of my present subject.

Both Conventions can be amended only by the unanimous agreement of member states. Nonetheless, until relatively recently they have been revised every two decades or so, mainly so as to increase their scope in favour of industrialised producer countries. At the same time, member states have honoured their obligations in the main, without any too scrupulous regard for precise compliance. But then there are as yet no specific provisions for dispute settlement in the Conventions; nor is intellectual property a field in which one country ventures to institute proceedings against another before the International Court in order to demand that a Convention be strictly observed.

The comfortable, slightly dishevelled, approach of earlier decades has not, however, survived into a world of much heightened international trade. On the one hand leaders of many industries see their products being pirated on an increasing scale, not least in those countries undergoing novel and rapid industrialisation. On the other hand, the least successful countries of the developing world, threatened in many overwhelming ways, see intellectual property as a leech used selfishly and aggressively by the richest to suck away their little wealth, leaving no nourishment behind from which they can replenish their economic blood supply. They have argued that the Conventions must be adapted so as to foster their ability to attract foreign technology, and also the stuff of learning, entertainment and sophisticated marketing so as to found and foster their domestic industry. As a result, the 1967 revision of the Berne Convention on Copyright at Stockholm came close to disaster and was rescued only by a special compromise four years later.⁷ And while between 1981 and 1984 the WIPO valiantly sustained efforts to revise the Paris Convention, the negotiations ended in an adjournment sine die.

The standard assumption has since been that neither Convention is now capable of direct amendment, though recently an Expert Group has been examining the possibility of elaborating or refining the Berne Convention, possibly by means of a separate Protocol for those states willing to accept it. More significantly, in a scissors movement led by the United States, there has been a revival of bilateral action in the course of country-to-country trade talks; and at the same time, the prospect of a new measure of international agreement has been raised in the present Uruguay renegotiation of the General Agreement on Tariffs and Trade, the GATT.⁸ To this new level of international excitement I shall come back at a later stage.

C. Characteristic Types

I must return briefly to intellectual property at the national level: as nations have engaged in the business of devising laws in this field, three broad types of intellectual property have predominated. There is much greater difference between these three types than between the various national laws relating to any one type. The three types are as follows.

1. Patents for technological inventions. Since we look upon technical advance as a crucial key to economic progress, both national and international, great quantities of research and development are directed to discovering what is there to be unearthed. Patent systems offer, and perhaps achieve, a short term incentive to this process. A typical maximum term nowadays is 20 years,⁹ the right being accorded not for invention in itself but (in most countries) for being first to apply and so to secure a patent for the invention. This patent gives a right which has effect even against those who independently reach the same result. Typically states have been willing to allow patents to foreigners, because they have been moved to adopt their system in any case by the hope of attracting advanced foreign technology to their country; they are more likely to wish to impose conditions later (particularly by way of compulsory licence) if they find that the technology is not being used in domestic production and the patent merely protects importation. This has been an obsession of today’s developing countries, but they have behaved in the matter no differently from the developing countries of earlier periods. All these factors underscore how predominantly patent systems have economic enhancement as their goal, rather than any conception of natural entitlement by way of reward to the inventor personally.¹⁰

The most fundamental characteristic of a patent for a particular invention is its potential ability to confer real market power in an economic sense—the power to restrict production and maintain prices so as to maximise profitability in the absence of direct competition. This potential is realised only in a tiny proportion of all inventions actually patented. But the lure is there, as is demonstrated by the resilience of patent systems, for all the criticism which they face for their cumbersomeness, wastefulness and unpredictability.

Their essential drawing power lies in their ability to grant legal exclusivity, in the case of a true break-through, for all the ways of exploiting an invention industrially, not merely in respect of the particular version or application of the concept on which the inventor has actually worked in the course of research. But just because the lure is so considerable, the granting of patents has to be reserved for the best cases—advances which can rank as “patentable inventions”. Today this imports various legal pre-conditions which, in the more developed systems, will include a substantive requirement of inventive step over the existing art, and a Patent Office examination before grant. These conditions make patenting a slow, expensive, complex and often uncertain affair, particularly for small businesses. 2. Copyright. This second basic type of intellectual property is a creature of very different genus. The typical period of copyright protection in a literary, musical or artistic work (what our Continental neighbours would call an “authors’ right”), is for the author’s life and 50 years thereafter. In the Common Market, if the Brussels Commission gets its way, it will soon become life plus 70 years.¹¹ Though copyright acts as a basic prop for the publishing, recording, film and broadcasting industries, the right is by common consent given for a period far longer than is needed to persuade doubting entrepreneurs to invest in the initial commercialisation of works of which the public might otherwise be deprived. Investment decisions are not calculated upon distant prospects but upon predictable returns over relatively short periods. The earnings of even 20 years hence have only the most heavily discounted present value. The cultural well-being of a society, the enlargement of choice for the edification and entertainment of its consumers—these are only secondary objectives of copyright as a form of legal protection. Here, to a degree not found with patents, legislatures have been persuaded to accord rights which will allow the authors of long-lasting works to share in that value for a span which extends beyond their own lives to that of at least one generation of their inheritors. Competitors will have to pay for the right to use the work, if indeed they are not wholly excluded from using it, throughout a period which may be 100 years or more. Such an exclusion of competition has been acceptable because the right is limited to the act of copying the work in question; and moreover to a copying of the particular expression of the work and not the broader, more embracing concept or idea which underlies it.¹²

The classic notion of copyright has been sustained by the image of the artist-hero. Indeed the sharper-eyed exemplars of that high tradition—one thinks of Charles Dickens, of Victor Hugo, of Richard Strauss¹³—have campaigned conspicuously for copyright. But the right has long applied over much wider territory than that of works more or less great. In measures which have differed somewhat between countries, it gave legal cover not only to popular culture, some of it remarkably durable, but also to “informational” products of many kinds. Courts everywhere, naturally reluctant to impose their own opinions of what amounts to Art, have let in more and more small coin alongside the notes of high denomination. So much so that, in the modern world of data bases, both the Dutch and the United States Supreme Courts have just sought to impose some limits on this process.¹⁴

Working at a tangent to this, there has been a persistent movement, first in the British tradition, then in a growing number of Continental countries, and eventually in the United States,¹⁵ to place so-called “neighbouring rights” alongside copyright. These are separate, additional rights, given for the most part directly to the fi...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I THE POLITICS AND ECONOMICS OF GLOBAL INTELLECTUAL PROPERTIZATION
• PART II TRADE-LINKED INTELLECTUAL PROPERTY NEGOTIATIONS: LATERALISMS AND TRIPS
• PART III NEO-IMPERIALISM? GLOBAL INTELLECTUAL PROPERTIZATION IN A POST-COLONIAL AGE
• PART IV GLOBALIZATION’S EFFECTS ON INTELLECTUAL PROPERTY LAW’S CLASSIC DOCTRINES AND RATIONALES
• PART V BEYOND LAW: CULTURAL EFFECTS OF GLOBAL INTELLECTUAL PROPERTIZATION
• Name Index