Increasingly, intellectual property is an international rather than a national issue. Treaties such as the General Agreement on Tariffs and Trade have made intellectual property a fundamental portion of the law of international trade, and the choices of nation states about their intellectual property regimes are thus significantly circumscribed. As the line between the protected and unprotected is mandated by trade law, the public domain, too, has been internationalized. This is not a dry issue of purely economic import. Intellectual property policy will help to determine the balance between encouraging drug companies to develop new AIDS drugs and making them available at a price that the citizens of sub-Saharan Africa can afford. Intellectual property policy will determine the boundaries within which developing countries can chart their own path towards development, and will regulate everything from the treatment of traditional knowledge and indigenous medicines, to the flow of scientific and technical data across frontiers. The CSPD’s studies into the international balance between intellectual property and the public domain fall into three intersecting areas.
International Public Goods and Transfer of Technology under a Globalized Intellectual Property Regime: In April of 2003, the CSPD held a major conference on this theme. The goal of the conference was to focus the attention of leading economic and legal scholars on the bigger picture that is emerging from the upward harmonization of international intellectual property rights since the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 1994. Global intellectual property rights are expected to increase innovation and trade in high technology goods, in addition to reducing costs of transferring proprietary information across borders. Despite these benefits, a “one size fits all” model raises fundamental concerns for the well-being of developing countries and, indeed, for small and medium-sized firms and researchers everywhere. Incentives to innovate must be balanced against the need for diffusion of new technologies, while measures to overcome market failure should not impoverish the public domain or unduly hinder healthy competition. Ever stronger and globally more comprehensive IPRs may turn out to impede the promotion of such public goods as sustainable development, widespread health care, technology transfer, and broad-based advances in science and education. They may also create barriers to entry and other anticompetitive effects.
This was the first major conference to analyze the complex conceptual foundations of the new global IPR regime based on both legal and economic reasoning. It examined ways and means to minimize social costs and enhance the benefits that could ensue from TRIPS and other international agreements by deliberately taking the promotion of public goods into account. An exceptional roster of distinguished economists, political scientists, legal scholars and others addressed the following topics:
- International Provision of Public Goods in the New Regime
- Technology Transfer in the 21st Century
- Reforming the Global IPR System to Promote Public Goods
- Ensuring Access to Essential Medicines
- Stimulating Local Innovation
- The Critical Role of Competition Law in Preserving Public Goods
- Preserving the Cultural and Scientific Commons
- Recognition of Public Goods in WTO Dispute Settlement
- Assessing the Suitability of IPRs for Traditional Knowledge and Cultural Industries
The conference was organized by Keith Maskus, Professor and Chair of the Department of Economics at the University of Colorado at Boulder and former lead research economist at the World Bank, and Jerome Reichman, the Bunyan S. Womble Professor of Law at Duke Law School.
Alternative Intellectual Property Regimes: One of the broader themes of the CSPD’s studies in this area is that intellectual property can provide significant benefits to developing countries, helping to spur decentralized innovation that fills the needs of the local economy. However it is by no means clear that a “one size fits all” intellectual property policy can do so. Thus it becomes necessary to consider the concrete details of alternative intellectual property regimes. In several important studies, CSPD Faculty Co-Director Jerome Reichman has argued that the international system needs to pay greater attention to protection for sub-patentable innovation, both in order to deal with an important type of indigenous innovation within developing countries and to lessen the pressure on the patent system produced when sub-patentable innovations are completely unprotected. Some of Professor Reichman’s key arguments can be found in Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovation, 53 Vand. L. Rev. 1743 (2000).
The Proper Role of Compulsory Licensing in International Intellectual Property Regimes: Economists have long told us that the difficulty in setting up a well-functioning intellectual property regime is in balancing the incentive effects with the negative consequences that come from the monopoly conferred by the intellectual property right. One tool to help resolve this problem is the compulsory license: a legal regime under which individuals and companies are granted rights and royalties, but as the price for such a grant, these individuals and companies must – under certain limited circumstances – make the underlying intellectual property available, sometimes for a fee, and sometimes for free. There has been much rhetoric about compulsory licenses – both condemning them as nefarious socialism and praising them as the cure for all evils. What has been missing until now, however, is a comprehensive study of how compulsory licenses are actually used in the international scene, and the effects that they have produced. In a series of important international studies, CSPD faculty have attempted to remedy this deficit. See, for example, Jerome H. Reichman and Catherine Hasenzahl, Non-voluntary Licensing of Patented Inventions: Historical Perspective, Legal Framework under TRIPS, and an Overview of the Practice in Canada and the United States of America (September, 2002) (published by the UNCTAD/ICTSD Capacity Building Project on Intellectual Property Rights and Sustainable Development).