I am pleased to announce a new online symposium, featuring comments about the issues that Professor Sam Halabi raises in his new book, Intellectual Property and the New International Economic Order: Oligopoly, Regulation, and Wealth Redistribution in the Global Knowledge Economy (Cambridge University Press 2018). This week’s symposium, along with Halabi’s book, strikes at the heart of some of the most important questions in international regulatory discussions today. Scholars from a variety of disciplines will share their insights on the intersections of intellectual property rights (IPR) protection, public health and welfare, and transnational regulation, focusing on the effects of international intellectual property instruments on domestic initiatives affecting development goals. In this post, I introduce the fundamental claims of the book, inviting my fellow contributors to provide their interpretations and insights into the book’s arguments during their posts.
In Intellectual Property and the New International Economic Order, Professor Halabi addresses anew an age old question: Is there any formulation of transnational intellectual property regulation that is consonant with development goals? Halabi argues that such a formulation is possible, and indeed extant. Halabi posits that the extensive scholarly and media focus on the high profile IPR/trade/investment negotiations dominated by developed countries and their IPR-dependent industries has masked an effective, cohesive transnational framework that supports the health and welfare goals of developing countries. Tying this pro-development movement to the New International Economic Order that arose out of 1970s UN General Assembly discussions, Halabi claims that the framework has successfully redistributed wealth from global IPR-driven firms to developing countries. Thus, he claims, developing countries have pushed back on the heightened IPR protection measures constructed in mainstream IPR, trade, and investment negotiations, to the benefit of key public interest sectors. The catalyst for this redistributive process is a series of seemingly disparate instruments that Halabi terms “international intellectual property shelters.” These instruments, often non-binding and non-IPR-specific, have created space for domestic regulation of welfare-crucial industry sectors that minimizes the perceived deleterious effects of the more traditional international IPR instruments. Through these shelters, Halabi argues, developing countries have effected massive positive change, with respect to both domestic goals and balance in the international IPR system.
In the book, Halabi details extensively the historical and contemporaneous factors that led to development of the instruments, identifying the relevant development goals and industry sectors that created a climate ripe for shelters. He argues that intellectual property shelters are most effective when they relate to core public health and welfare goals and when they affect industry sectors that are heavily consolidated. He identifies a number of sectors as emblematic of this phenomenon, including pharmaceuticals, agriculture, tobacco, infant food, and educational materials. With respect to each sector, Halabi explains the context out of which regulatory reform arose and details the provisions of the instruments that he claims effectuated that reform.
Halabi is not the first to identify the instruments he highlights. His most valuable contribution, thus, is not in the descriptions of the instruments, but in his presentation of them as an aggregated whole. Halabi argues that pre-existing scholarship on IPR and development has been too dismissive of these instruments, or at the very least has failed to see their cumulative potential. His is a hopeful take on a long-term problem—the existence of a seemingly insurmountable development divide in international IPR regulation. He argues that developing countries have been more active, more effective, and more successful at fighting the battles that mean the most to them than most have given them credit for being. He analyzes how market concentration in industries with disproportionate impacts on public welfare issues paves the way for meaningful industry regulation, and he points to several examples of regulatory measures that, at a minimum, have gotten the attention of the relevant firms.
I will save my praises and critiques of Halabi’s work for my upcoming substantive post, but I will say this now. This conversation is important. In an age when IPR discussions sometimes stray into the frivolous, the petty, or the tedious, this conversation matters. The actions taken on the subjects Halabi addresses in this book affect health, well-being, cultural integrity, sustainability, and literacy. In many instances, the decisions on these subjects made by governments, international regulatory bodies, and private firms are matters of life and death. What could be more important than engaging on these matters of vital concern? I consider it a privilege to be a part of this conversation.
The schedule of contributors is:
October 1, afternoon: Peter Conti-Brown, University of Pennsylvania Wharton School of Business
October 2, morning: Katja Lindroos Weckström, University of Eastern Finland Law School
October 2, afternoon: Jeffrey Pojanowski, University of Notre Dame Law School
October 3, afternoon: Daniel Hemel, University of Chicago Law School
October 4, morning: Patricia Judd, Washburn University School of Law
October 4, afternoon: Chris Walker, The Ohio State University Moritz College of Law
October 5, morning: J. Janewa Osei-Tutu, Florida International University College of Law
October 5, afternoon: Henning Grosse Ruse-Khan, University of Cambridge, King’s College Faculty of Law
October 8, morning: Susan Sell, Australian National University School of Regulation and Global Governance
October 8, afternoon: Peter Yu, Texas A&M University School of Law
I look forward to reading the thoughts of each of these noted scholars and hope that Sam Halabi will chime in with a response as well.
Patricia L. Judd, a professor at Washburn University School of Law, focuses her scholarly work on the transnational regulation of intellectual property law, with a focus on the evolutionary relationship between intellectual property and international trade law. http://washburnlaw.edu/profiles/judd-patricia.html
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.