Key Insights from Intellectual Property and the New International Economic Order, by Peter Yu

by Guest Blogger — Monday, Oct. 8, 2018

In a world with ever-sprawling developments involving intellectual property rights, Sam Halabi’s new book, Intellectual Property and the New International Economic Order, could not have been published at a better time. This well-written, passionately argued, historically informed and highly interdisciplinary book covers issues ranging from pharmaceutical development to agricultural production and from biological diversity to tobacco control.

For those interested in international economic history, this book is even more attractive. In intellectual property literature, few recent scholars have tied the debate back to the New International Economic Order, which emerged shortly after the oil crisis in the early 1970s. Spanning more than a century, the book’s rich historical narrative has made salient the path-dependent nature of international intellectual property law and policy.

Today, intellectual property scholarship has been dominated by analyses of the TRIPS Agreement and TRIPS-plus bilateral, regional and plurilateral agreements. Commentators have also paid considerable attention to the counter efforts undertaken by developing countries in multiple international fora. In addition, book-length treatments have now appeared to explore limitations, flexibilities and safeguards in international intellectual property law.

Because this book covers many of these previously studied topics, and we are now approaching the end of the symposium, this post seeks to highlight the new insights provided by Professor Halabi.

First, the book paints a rare panoramic canvas of the different, and at times seemingly unrelated, developments involving intellectual property rights. While most of the captured developments took place in the intellectual property area, the holistic picture the author painted reveals as much about the intersecting areas. As readers continue to re-read the book, they will most certainly find new perspectives and insights hidden in this wide canvas.

Second, the book gives hope to those who work tirelessly on intellectual property reform but remain frustrated by the never-ending demands for higher standards from intellectual property industries and their supportive governments. Whether it is the TRIPS Agreement, a TRIPS-plus bilateral free trade agreement, the Anti-Counterfeiting Trade Agreement or the Trans-Pacific Partnership, intellectual property reformers seem to be fighting the same battle again and again. Yet, the book’s uplifting account suggests the emergence of promising regulatory developments in multiple international fora. Coined “intellectual property shelters,” this new form of oligarch-targeting supranational regulation has cumulatively provided poorer countries with the much-needed policy space, “breathing room” and, most importantly, an opportunity to eventually flourish.

Third, as noted by previous posts in this symposium, the book focuses refreshingly on institutional designs and related reforms. Such a focus links intellectual property scholarship to scholarship in other areas of the law, such as trade, health, investment, competition and public international law. The institutional focus also connects legal scholarship to scholarship in other disciplines—most notably, economic history, political science, international relations and development studies. To a large extent, the book has shown how intellectual property developments can provide a useful vantage point for scholars to study international institutions and their role in global development and redistribution of wealth.

Finally, the book advances an interesting argument about how these so-called “intellectual property shelters” can serve the regulatory function provided by competition law and policy. Commentators have repeatedly called for the use of the competition system to provide exogenous constraints on intellectual property rights. This book shows how international institutions can be redesigned to achieve the same goal. The unique insight regarding regulatory alternatives will likely be highly important to those countries that have not fully developed their competition systems.

Apart from providing these important insights, Professor Halabi’s book has provoked many questions concerning intellectual property and global development. Because the limited space here does not allow me to further explore these questions, the remainder of this post will focus on the question that has lingered in my mind and that the book has not fully addressed: when should countries seek intellectual property shelters and when should they move out?

The author has created the notion of “intellectual property shelters” to capture the dizzying array of multi-regime developments in what commentators have called the “subtractive narrative”—the narrative that features demands for reduced international minimum standards. Yet, as important as this narrative has been to promoting development and self-determination, it may not fully capture the aspirations of developing countries and the people residing therein. Indeed, the subtractive narrative may not always help these countries reach their preferred destinations.

In the past three decades, developing countries and their supportive commentators and nongovernmental organizations have complained ad nauseum about the detrimental impacts of the TRIPS Agreement and TRIPS-plus bilateral, regional and plurilateral agreements. Specifically, they lament how these insensitive agreements have coerced developing countries into adopting high and inappropriate standards that stifle local development.

While these concerns are understandable and largely valid, the recent decade has also seen emerging countries, such as China and India, taking off economically and technologically. These countries did so despite the severe constraints imposed by the TRIPS Agreement and the WTO-based international economic order. Given these intriguing developments, it is only logical that we critically reexamine the subtractive narrative.

In the context of this book, it will also be worthwhile to ask when intellectual property shelters will benefit developing countries and when they will not. Although we will have to await Professor Halabi to illuminate us in future work, this question has revealed another strength of the current project: the book has provoked us to think more deeply about the changes we need to make to our international economic order to promote global development.

Professor Halabi’s new and ambitious book deserves not only our attention but also multiple reads. If you have already read it once, you should read it again (this time, more slowly). If you have not read the book yet, it is about time you ordered a copy.

Peter K. Yu is Professor of Law, Professor of Communication and Director of the Center for Law and Intellectual Property at Texas A&M University. Born and raised in Hong Kong, he is the Co-Director of Studies of the American Branch of the International Law Association and has served as the general editor of The WIPO Journal published by the World Intellectual Property Organization.

 

This post is part of a symposium reviewing Intellectual Property and the New International Economic Order: Oligopoly, Regulation, and Wealth Redistribution in the Global Knowledge Economy, a new book by Sam Halabi, Associate Professor at the University of Missouri School of Law and Scholar at the O’Neill Institute for National and Global Health Law at Georgetown University. All of the posts can be read here.

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