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An 1886 comic by artist Joseph Ferdinand Keppler depicts authors from around the globe confronting a publisher who sells their works in foreign countries without permission and without compensation. (Wikimedia Commons)

Today, a Byzantine system of international treaties and institutions regulate intellectual property, from new inventions and original literary works to shadowy trade secrets and novel plant breeds.

A patchwork of complicated national laws and international agreements forms the current system of intellectual property (IP) protections. IP can be roughly split into: copyrights, which protect original literary, musical, dramatic, graphic, cinematic, and architectural works; patents, which protect “new, useful, and nonobvious” inventions; trademarks, which protect words, phrases, or designs; and trade secrets.

What American Authors Think About International Copyright was published in 1888 around the same time the United States and Europe were establishing multinational conventions on the issue. (Wikimedia Commons) — *What American Authors Think About International Copyright* was published in 1888 around the same time the United States and Europe were establishing multinational conventions on the issue. (Wikimedia Commons)

The unified global intellectual property rights (IPR) regime established in the 1880s was ostensibly intended to enable seamless international trade and ensure that every person and company would have equal access to worldwide protection for their original works. This vision has failed. In practice, today’s complicated transnational intellectual property laws are often abused by the developed world to keep the developing world dependent in a new, legal, and insidious example of economic imperialism.

Those Who Cannot Remember the Past Are Doomed to Make It Up

During the creation of the World Trade Organization (WTO), from 1986 to 1994, prospective members negotiated a multilateral convention on the protection of IPR, a compact that the world’s advanced countries have since defended and enforced zealously. But, once upon a time, these same advanced industrial countries were the developing countries—and they did not really care about IPR at the time.

Before the mid-1800s, despite the fact that an industrializing Europe had begun to implement patent protections, most countries explicitly continued to allow their citizens to patent domestic copies of imported inventions. Even after an international (read: European) patent regime was codified in the late 1800s, Western countries routinely neglected other countries’ intellectual property protections in the name of economic development. The U.S. did not acknowledge the patent rights of foreigners until 1891; Germany routinely violated British trademark laws to sell counterfeit cutlery.

U.S. inventor Eli Whitney patented the cotton gin in 1794. (Wikimedia Commons)

Thanks to the international trade spurred by the General Agreement on Tariffs and Trade (GATT) and its successor agreement, the WTO, the late 20th century saw the codification of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) within the WTO framework.

Economist Ha-Joon Chang notes that few, if any, of the IPR standards in TRIPS were observed by Europe or the U.S. during their own period of rapid industrial development. TRIPS, however, essentially puts an economic straightjacket on today’s developing countries—a straightjacket that Europe never had to worry about a century ago and that developing countries are virtually powerless to remove.

Et in Geneva Ego

The Geneva-based World Intellectual Property Organization (WIPO) is the United Nations agency responsible for coordinating the intellectual property registration processes of signatories. Its chartering mission is to “lead the development of a balanced and effective international IP system that enables innovation and creativity for the benefit of all.”

The World Intellectual Property Organization (WIPO) is the United Nations agency responsible for coordinating global intellectual property registration and enforcement. (Flickr)

Kenyan Cabinet Secretary for Sports, Culture, and Heritage Amina Mohamed told a WIPO conference in May 2019 that “it is always refreshing to see how much WIPO is doing to build capacity, to provide technical assistance, and to support the establishment of IP offices across the developing world.” Because intellectual property is often not entitled to protection until it is registered, Mohamed’s statement actually reveals a troubling inequity in global IPR conventions: developing countries do not have the domestic legal and regulatory capacity to register their own intellectual property with WIPO, let alone fight legal enforcement battles to protect it around the globe. Inventions, for example, receive patent protection for the first person or company to file their application with a national patent office—not for the first person or company to invent the patentable idea! This lack of institutional capacity in developing countries only exacerbates the development gap by preventing them from profiting off their own innovation.

Developing countries should not be blamed for their inability to meaningfully innovate. Blame TRIPS, which allows for the international enforcement of a set of IPR standards that are clearly favorable to richer, industrialized countries. The beneficiary countries, historically the advanced Western states, have the money and institutional capability needed not only to create and quickly register new industrial knowledge but also to harshly punish violators around the world.

‘The Following Content Is Restricted to Users Above $30,000 GDP Per Capita’

In the decades leading up to the creation of the WTO and TRIPS, the United States began enforcing tough IPR standards in its bilateral trade deals with other countries. IPR became a key focus of the U.S. Trade Representative’s Office, and this focus ultimately created TRIPS. In fact, TRIPS was born partly out of the United States’ hostile reaction to developing countries’ attempts to use WIPO, part of the United Nations (read: not so strongly controlled by Western powers), to push for greater technology transfer.

The United States and its European allies pushed back against developing countries and used WTO negotiations to instead force the acceptance of TRIPS. Beyond mild concessions to developing countries, TRIPS codified what the world’s rich states believed modern IPR rules should look like. Defenders of TRIPS claim that TRIPS still fulfills developing countries’ demands, allowing developing countries to innovate more and gain access to more advanced technologies.

Unfortunately (and unlike the many Western patents registered since), these claims have not stood the test of time. Not only do industrially innovative activities in most developing countries remain minimal, but firms in developed countries have not transferred their technologies to developing countries as envisioned. Adding injury to insult, the alleged benefits of TRIPS come at a high cost to developing countries. To use patents at all requires paying recurring royalty fees, often to multinational corporations, and these payments can deplete developing countries’ foreign exchange reserves. Managing the legal and technical work of enforcing a strong IPR regime in developing countries requires offices, bureaucrats, and legal expertise, pushing institutional costs out of the reach of many developing countries.

The existing global IPR regime relegates developing countries into debilitating dependency, all to the benefit of multinational corporations based in the industrialized world. The high costs that TRIPS imposes on developing countries stunts their innovation and their ability to defend their gains. Perhaps most harmful to domestic innovation and industry growth, TRIPS opens developing countries’ doors to patent-loaded Western multinational corporations.

How to Own Plants

Corporations exploit TRIPS and domestic IPR laws to jack up the prices of goods related to a patent, even acting like monopolies. For example, just three companies—Monsanto (now owned by Bayer), Syngenta, and DuPont—control more than half of the global seed market through their patents. From 1995 to 2011, the cost of planting an acre of soybeans, the most common variety of which is patented by Monsanto, rose by 325 percent in the U.S. Farmers in Brazil argue that Monsanto’s licensing fees are “abusive.” After 22 years of legal tennis, Argentina’s Supreme Court finally ruled against Monsanto’s patent application for its strain of soybeans last year, citing a petition from indigenous farmers who argued that granting Monsanto the patent would hurt indigenous communities and local biodiversity.

The Supreme Court of Argentina recently rejected Monsanto’s application to register its patent of a novel soybean variety in the country. (Wikimedia Commons)

Most shamefully to developing countries, TRIPS even threatens some countries’ abilities to pay for their own ways of life. In the late 1990s, the U.S. granted a set of patents to RiceTec for “basmati rice” strains with the same properties as Indian basmati rice, which has grown indigenously in South Asia for centuries. The nature of TRIPS meant that the patent was enforceable across all WTO member countries, threatening Indian rice exporters with a loss of market access to the U.S. The Indian government and thousands of supporters protested and petitioned the U.S. to revoke the patents. The U.S. eventually relented and revoked most of the RiceTec patents in question.

This incident was a wake-up call to the Indian government: India’s biodiversity and way of life were both at stake if Western companies could claim ownership of its plants and foods. In fact, India also had to fight off patents on turmeric, neem, and tamarind, all of which have been ubiquitous in the daily lives of Indians since ancient times. The injustice reeks of colonialism: advanced countries can essentially appropriate the widespread knowledge of developing countries as their own property, while developing countries can only license the technologies of advanced countries at immense cost.

The Elect & Everyone Else

Amid the global COVID-19 pandemic, DW reported on March 15 that the United States government offered “large sums of money” in exchange for exclusive access to a potential vaccine developed by the German firm CureVac. German politicians pushed back and offered financial incentives for the firm to continue development in Germany, fearing that initial access to the vaccine would be limited to the United States.

A CureVac researcher works in a lab in southern Germany. (Flickr)

While officials did not specify what exclusivity would look like, they also raised the possibility that the U.S. would produce the vaccine for its citizens first and only allowing the rest of the world access later. While the German Health Ministry confirmed the truth of quotations used in the DW article, CureVac and U.S. officials, including the U.S. ambassador to Germany, have contested the claims.

Either way, the story shows that IPR regulations can be contentious and counter to common sense at any stage of development. Viruses do not recognize borders. No country should be able to claim the exclusive right to produce a life-saving vaccine. A German lawmaker and professor of epidemiology said it best: “Capitalism has limits.”

Gatekeepers of Progress

There seems little hope of reforming the current global IPR regime to reduce the structural inequities that constrain development in the countries that need it most and entrench innovation in a privileged few. After all, the advanced industrial economies hold all the cards: they have the technologies developing countries need now, they have the institutional knowledge and resources to monitor IP violations on a global scale, and they have the economic leverage to punish any developing country that fails to fall into line.

That is why the greatest success story of the developing world may be China, a country with the scale to ignore Western IP laws at every turn and still retain its place at the center of the global manufacturing economy. But, this path is not replicable for every developing country—and it turns out China is getting to the point of development where it would like stronger IP protections of its own.

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EDITORIAL: Intellectual Property Rights (& Wrongs)