Moderator: Cynthia Ho, Loyola U-Chicago
Rochelle Dreyfuss, NYU
Demandeurs learned that regime shifting worked, going from
WIPO to WTO. Then bilateral
agreements. Then ACTA. That didn’t work fully either, so now we’re
doing other things—seeking to incorporate ACTA into bilateral FTAs, with poorer
countries that had no role whatsoever in the negotiation process. Secrecy and trade context are linked; reaping
comparative advantage is paramount, and expression/scientific values are
largely obscured. Trade negotiators don’t realize that maximizing IP rights isn’t
the unmitigated good that relaxing trade barriers is. Public interest groups have minimal
voice. Procedural reform might help. But is transparency enough?
Some countries found flexibility in TRIPs and resisted demands
for TRIPs-plus, but many didn’t. What
accounts for the differences? Partly
institutional. Ecuador, Andean
community, was about to sign TRIPs-plus but didn’t because of a ruling it would
violate Andean law. Brazil: health
ministry has a lot of power over IP, so its position was shaped by
pharmaceutical issues. Largely shaped by
access to information about substance—the actual effects of IP law. No country had local organizations dedicated
to IP. Other institutions: local generic
drug industry turned out to matter a lot.
Some countries have fake drugs; those industries weren’t helpful or
trusted. Others have branded generic
industries, relying on TM instead of patent, and that didn’t help either. Chile has a strong industry and ended up with
a nuanced deal with the US. Empirical
studies, long experience, and strategies for dealing with demands for strong protection—some
NGOs can do that; others can’t. Some
NGOs are good at vernacularizing their scripts to local interests—human rights,
consumer protection, indigenous rights.
WIPO is supposed to perform some of that role, but none of her
interviewees mentioned WIPO. Individuals
also matter.
Bottom line: procedural opportunities, while critical, aren’t
enough. Must reconceptualize substance
of IP in helpful ways. New soft laws;
agreements on exceptions and limitations on copyright; Max Planck’s proposal to
amend TRIPs. Her proposal with G.
Dinwoodie: the IP acquis: an undertaking of express and implicit
obligations. Rights of proprietors in IP
tend to be explicit, rights of users implicit.
They want an agreement on customary etc. norms protecting producers as
well as users/nations. Principles appear
repeatedly in national laws, embedded in cognate bodies of law, reflected in
national constitutions. These are the
fabric of IP regimes, and recognizing their existence would further legitimate
expectations and stability; would also enable forms of resistance to IP rights along
with ways of making further demands for IP owners: balance. Would also
assist international dispute resolution, since the WTO panels don’t fully
understand IP law.
Sean Flynn, AU-Washington College of Law
TPP: post-ACTA, being negotiated right now to make law
internationally that will be brought down to the national level. Enforcement/maximalist agenda led by US, EU,
Japan etc. Gervais says this is an
addition narrative: more IP is always better for developed and developing
countries. Dominant over the last
century. Second agenda: development
agenda, which is often associated with access to medicines but begins before
that. More limitations, flexibilities,
special treatment through all areas of international law including IP.
Special 301 threats over limited IP rights remain. One important trend: defunding of civil
society organizations over the last decade, both in this country and abroad,
dealing with IP issues. While IP owners
have access to policymakers and secret information about negotiations. ACTA is negotiated in that context, with only
two developing countries (Mexico and Morocco, already handed out high IP rights/closely
allied with the demandeurs). TPP: also
being negotiated with weaker countries less likely to stand up to the
maximalist agenda.
India: no patent rights for new forms of known substances
that don’t result in increased efficacy.
TPP: takes exactly opposite position—intended to create new global
standard where the target of the standard is not present at the negotiations.
IP industries tend to shoot for the head, not the long
tail. Consumers in developing countries
are in the tail, except for a small number of wealthy consumers in each
country. Top 1% of people around globe
make $35,000/year: that’s the market for medicines, digital media. How do we shift medicine and digital media into
affordable/competitive markets? That’s
the development agenda. Enforcement
agenda is in closed forums; development agenda is multilateral, open.
David Levine, Elon U.
Transparency in ACTA—US unwilling to have any. The public can see how the US position
evolved when the final agreement is signed, according to the draft FAQ
ultimately coughed up by the US. Gallows
humor! Wikileaks cables have shown that
the US position (key demander of secrecy) was of significant concern to other
countries. Even legal positions of
allies have been kept secret on “national security” grounds. ACTA has been designated a “national security”
issue by presidential order, making it an executive order rather than a treaty.
This allows ACTA documents to be designated exempt under FOIA. A list of private entities who had to sign
NDAs to see a draft of ACTA, required by USTR, was itself designated exempt
from FOIA because disclosure would damage the national security of the US.
Peter Yu: primary argument is that other countries won’t
negotiate in good faith if their positions and US positions are made
public. Levine is dubious about this,
but the eventual release of information through leaks/public pressure suggests
that perhaps assumptions about secrecy should be rethought. Mutuality of interest between commercial
entities & gov’t defeats transparency.
This is about private interest conflicts, and the gov’t is choosing
commercial entities over the public’s right to know. FOIA allows use of
exemptions in unintended and bad ways.
FOIA becomes a proxy for this battle: control of flow of info benefits
commercial entities because the process allows these entitities to advise the
USTR, and not public interest entities.
Ability to sign NDA is given primarily to commercial entities.
Let’s assume that secrecy is good. Did we get its benefit through ACTA? Primary supposed benefit: smooth and
efficient process, fewer chefs in the kitchen.
But that level of secrecy was undermined by the reactions of
others. Plus, transparency in other IP
policymaking, e.g., WIPO, is significantly more extensive. Published agendas, lists of participants,
meeting minutes, draft documents etc. were all available. By contrast, it was
difficult even to find out when ACTA negotiations were taking place. Majority of major IP treaties going back 20
years completed in comparable or less time despite being more transparent:
TRIPs took 3½ years, though we don’t know exactly when ACTA started so it’s not
all that easy to compare.
Documents also indicate that many gov’t ministers didn’t
need that level of secrecy. They said as much. Harm to the credibility of the
process outweighs the benefits of the secrecy.
People conclude that the negotiators must have something to hide. ACTA shows that lawmaking gets bogged down
with nondisclosure plus unrealistic assumptions about ability to maintain
secrecy.
Keith Maskus, UC-Boulder, Department of Economics
Critical needs for new environmental mitigation and
adaptation technologies, and for ways to diffuse and adapt these to developing
countries. Non-OECD emissions are now greater than OECD emissions. Need for cuts is huge.
IP and tech transfer have been highly contentious in climate
change negotiations, in fact so contentious as to be omitted from the last
couple of meetings. Agenda difference is
fundamental: OECD countries say patents are necessary and effective for inducing
innovation and tech transfer; China, India, etc. say they’re a barrier. Compulsory licensing, public funding,
exempting least developed countries from patent obligations are
counterproposals. Banning patents on
genetic resources and plant and animal varieties relevant to climate change
adaptation. It is hard to compromise as between these positions.
Political economy means a domestic bias towards inaction;
without int’l coordination, everyone will free ride regardless of wealth. Radically different social and economic
valuations of clean air etc. across and within countries. Leakage issues: risk of pushing older tech to
developing countries without better means of tech transfer. IP system itself won’t support sufficient
investments in environmentally significant tech and especially in efficient
tech transfer to developing countries.
There is good evidence that property rights can expand tech
through raising certainty, facilitating licensing, and facilitating tech
markets, but the effects don’t seem to happen much in less developed
countries. Studies of patents in
environmentally significant technologies: rapid increase in patenting in
developing countries, but highly concentrated in China and other middle-income
countries. Virtually no patents in LDCs,
suggesting no intent to transfer. Patent ownership is largely in OECD and is
widely diffused (meaning multiple tech sources available, unlike the situation
in pharma—substantial numbers of substitute technologies often available; China
is a major and growing source for solar, fuel cells, wind). Biofuels and synfuels, however, may behave more
like pharma.
Basic conclusions: patents not yet a significant barrier to
tech transfer, but little evidence that patent incentives are enough to
overcome externalities and market failures.
Most ideas stem from pharma.
Patent term extensions to incentivize particular significant tech most
useful for reducing emissions; ex post extensions aren’t likely to stimulate
more innovation and are costly to users.
If done, should be tied to broad licensing. Short extensions for new
uses also seem unlikely to help.
Expedited patent exams and differentiated fee structures have some
promise, but requires improving patent examination quality. Difficult to figure
out how to set fees and eligibility; could provide rebates for licensing
commitments to poor countries, especially for renewal fees. Lower up front fees and higher renewal fees
could also make things move faster.
Short-term extensions in major markets for diffusion to LDCs—doesn’t
make much sense to him.
Patent variations are largely marginal changes; probably
need more global coordinated efforts. One possibility: increase info flows
through searchable databases and voluntary patent pools with differentiated
access royalty rates.
Universities/public labs should license or freely transfer tech
developed through public funding—initiatives in their infancy. Need global access to knowledge treaty on
basic research.
All of the above is secondary to raising global carbon
prices to induce innovation and tech transfer.
Mark Wu, Harvard
Selective enforcement and commercial scale provisions create
additional problems above what we’ve discussed already. Occurs in the US but is much worse elsewhere,
especially in places like China. Forced
people to turn to civil remedies; TRIPs requires such remedies but authorities
have enforced them selectively, making it difficult to bring a TRIPs challenge
because there are people who get arrested.
Yet remedies are not high enough; they get baked into the cost of doing
business, which remains overall very profitable. EU/US/Japan have therefore pushed for
criminal procedures. TRIPs asks for
criminal penalties for infringement of a “commercial scale.” What does that mean? Not out of the blue from TRIPs. Mainly used in developed countries’ law, but
Zimbabwe too.
Maximalist camp: anything that is of economic
benefit/private financial gain is commercial scale. Many critics of this perspective, since any
act of infringement could fall into this category. ACTA proposal initially was acts of
commercial gain and significant acts of infringement with no direct or indirect
commercial gain; this was eventually shot down as significant activities for
direct/indirect commercial gain. But
that doesn’t really solve the problem, because ACTA negotiators aren’t the
countries where the selective enforcement is a big problem.
Selective enforcement may seem to make things not as bad as
they seem from the anti-maximalist position.
But that pleases no one: not the maximalists, not the development agenda
folks who are interested in access to medicines/seeds/essential tech, which are
issues where there is often a chokepoint and you can’t get the latest one off
of the street corner the way you can with DVDs or purses. Two dissatisfied sides who feel unable to
deal with each other’s problems. Need to
seek an accommodation, but emerging economies will make this harder instead of
easier over the next decade.
Michael Carroll: Isn’t SOPA etc. an admission by US
rightsholders that the international products/regimes they invested in have
failed, since they can’t get enforcement elsewhere and so they have to wage
proxy war against domain names etc.? Why
is there bite to these regimes on the patent side and not the copyright side?
Flynn: SOPA tries to deal with a very different problem than
Wu talks about—US-directed websites trading in pirated material. The piracy
problem in the US is very small. Hard to
measure piracy, but the number of true consumers in the US of most of their
media through pirated content is about 1% by self-report. India, Russia: tech companies say the piracy
rate is well over 60%, and for some fields like games or movies can be 80-90%. You can talk about those problems completely
differently. SOPA has lots of problems,
but it’s not the same as trying to cut off piracy in Russia/China. What kind of
world do you have to create in those countries to drive the piracy rate down to
US rates? You can’t cut off all piracy
in a country where piracy is the mass
market. Universal pricing is the problem—in India, a legit CD costs $17. Won’t sell many CDs in a country with GDP
$1500. You can throw the 99% in jail, or
you can try public policy forcing media into new distribution models. As long
as the agenda is the perfect enforcement model for the $17 CD, that is doomed
to fail.
Maskus: the policy is designed to destroy content,
ultimately, by punishing and angering your own consumers. Extending that internationally makes little
sense. New distribution structures are
better: licensing digital content is difficult technically and legally with
different collective societies. That
needs to be cleaned up through competition policy or agreement about licensing. We don’t need a global compulsory licensing
regime because everyone can always do compulsory licensing already, but the
question is one of effectiveness.
Dreyfuss: Many countries don’t have enough money to affect
incentives much. Even if they bought the stuff, it wouldn’t provide much; the
real problem is exportation, which SOPA is trying to deal with. Might be better
to deal with exports in TRIPs for both patents and software. Most patented stuff really does ship as a
physical problem so it could be dealt with that way as part of an acquis. Exports instead of imports.
Colleen Chien: She hears discussion of legislative
agreements and dispute settlement panels as the new form of decisionmaking
rather than courts. Is it enough to get
countries to agree to ACTA or will that be tested in enforcement mechanisms.
Dreyfuss: developing countries see nonviolation complaints
as a real threat to push for compliance, but there are also opportunities to
grow WTO law. One area where that might
happen is bilaterals asking for TRIPs-plus when countries thought they were
signing on to ceilings—a developing country might be able to bring a nonviolation
complaint when pressured to sign TRIPs-plus.
Any change now draws the charge of “not TRIPs-compliant,” but we don’t
know whether that’s true. Why not more
complaints/proceedings? Because people are regime-shifting. That’s why she
thinks a nonviolation complaint might be useful. But people are also leery
because present decisions have not displayed much understanding of what IP
regimes really are.
Wu: have to convince developing countries that they want to
do a nonviolation complaint but still have all the benefits of TRIPs—have to
create a carveout for TRIPs and get the rest of the trade benefits.
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