In my third and final post, I address the important points raised by Susan Sell, Peter Yu, and Henning Grosse Ruse-Khan.
Professor Sell, one of the most important analysts of the rise of international intellectual property law, as well as of its winners and losers, urges caution as to how much the international intellectual property shelters I identify may truly usher in new forms of regulation or redistribution. In this sense, she shares Daniel Hemel’s instinct that some of the crucial next questions will involve testing realist, institutionalist, liberal theorist, and constructivist accounts of international intellectual property shelters. Based on the historical record, I share her skepticism. I would respond only that the argument of the book aimed not so much to encourage or discourage the formation of international intellectual property shelters but rather to trace their origin to old disputes between the global rich and the global poor. In this sense, the book implicitly suggests that leaders in all countries acknowledge that these major points of international relations – maldistribution of wealth and the influence of global firms – will pervade seemingly unrelated matters as long as they persist.
Peter Yu, who is as qualified as any scholar in the world to do so, surveys the broader literature on international intellectual property law and development and identifies the unique contributions the book makes to the current literature. He emphasizes the reach of the book outside the nominally economic or intellectual property-sphere to canvas IP-influencing developments in health, agricultural, and environmental agreements; the breathing room these other agreements may offer legislators and regulators in developing countries when bilateral and multilateral investment and trade agreements continue with ever-more IP protective provisions; and, the lessons it holds for institutional change. Professor Yu ends by raising an intriguing possibility: that the existence of shelters may distract from the broader and more important question of whether the global international intellectual property regime should be entirely re-thought in light of the development needs of poorer countries. I share with Professors Sell, in particular, a skepticism about the potential for sweeping change to fundamentally alter the existing investment and trade order. However, if such change is to happen, I argue that it will be so through some species of competition law, the body of law most tailored to the influence of oligopolies. Professor Yu is correct that detailed analysis of the shelters is left for a future project and I hope to answer his question more squarely soon.
Henning Grosse Ruse-Khan provides a masterful analysis of how the intellectual property shelter’s I’ve identified (true, he argues that what I term “shelters” are really just the regulatory flexibilities sovereign states should enjoy anyway) are mutually reinforcing. The Marrakesh Treaty, the Doha Declaration, and the Framework Convention on Tobacco Control, for example, have played mutually reinforcing roles in opening flexibilities in intellectual property claims brought under investment and trade agreements. Hence, Professor Ruse-Khan sees the shelters becoming “protective zones” for regulatory and development interests. To be sure, the book identified important linkages between shelters (between the Convention on Biological Diversity and the Pandemic Influenza Preparedness Framework, for example) but had not analyzed the extent of those linkages. Professor Ruse-Khan has already demonstrated a keen ability to see subtle but important relationships across legal regimes, and I thank him for focusing that ability on identifying how international intellectual property shelters may coalesce across issue-areas.
I end once again thanking Rachel Kogan and Chris Walker for the tremendous time and effort that went into organizing the symposium as well as the many Notice and Comment and special contributors for their time and attention to Intellectual Property and the New International Economic Order: Oligopoly, Regulation, and Wealth Redistribution in the Global Knowledge Economy.