Vol. 15 No.10 (October 2005), pp.920-924
INTERNATIONAL PUBLIC GOODS AND TRANSFER OF TECHNOLOGY: UNDER A GLOBALIZED INTELLECTUAL PROPERTY REGIME, by Keith E. Maskus and Jerome H. Reichman (eds). Cambridge, UK: Cambridge University Press, 2005. 938pp. Paperback. $90.00/£50.00. ISBN: 0521603021. Hardback. $180.00/£100.00. ISBN: 0521841968.
Reviewed by Michael L. Rustad, Thomas F. Lambert Jr. Professor of Law & Co-Director of Intellectual Property Law Program, Suffolk University Law School, Boston. Email: profrustad [at] aol.com.
When historians look back to the first decade of the twenty-first century, they will view the globalization of intellectual property as creating a greater gap between the information age “haves” and “have nots.” Intellectual property has been transformed from a sleepy backwater of territorially-based jurisprudence to perhaps the most significant branch of private law. To paraphrase a famous tort scholar, intellectual property is public policy in disguise. The shrinking of the intellectual property commons may be witnessed in every branch of intellectual property law and these newly minted rights are increasingly being enforced across the world. Intellectual property rights (IPRs) are expanding in every branch of the law, and enforcement is sought around the world.
The genesis for this magisterial collection of essays was a Conference on International Public Goods and Transfers of Technology under a Globalized Intellectual Property Regime in April 2003 at Duke University. Essays in this book were previously published in the Oxford University Press Journal of International Economic Law. This book is one of the rare projects involving the cooperation of the university presses of Oxford and Cambridge. This book features a “who’s who” of intellectual property scholars with a serious interest in public policy impacts. The goal of the Duke University conference that led to this book was a reexamination of the impact of transnational intellectual property on less developed countries. The editors, Keith E. Maskus and Jerome H. Reichman, acknowledge that open trade and investment permits less developed countries to use new technologies. In contrast, the core European countries of early capitalism expropriated much of the capital surplus generated by the periphery through brute force. Today open trade and investment constrains undeveloped countries’ ability to receive and use new technologies (p.5).
The contributors to this volume examine the public policy underlying intellectual property protection expansion throughout the periphery and semi-periphery. The introductory chapter by Maskus and Reichman explain how the increasing protection for intellectual property through trade negotiations is the principal driver beyond the globalization of IPRs (p.5). TRIPS establish the floor but not the ceiling for intellectual property rights. Signatories, such as the semi-periphery nation of Mexico, must revamp their intellectual [*921] property laws to meet trade obligations. All signatories must enact statutes to protect copyright and related rights, trademark rights, patent rights, rights in layout designs of semiconductor integrated circuits, trade secrets rights, plant breeders’ rights, rights in geographical indications and industrial designs. Mexico, for example, must accord national treatment to the United States and Canada at a time when few of its citizens can pay the going rate for licensing IP-protected products and services. Mexico’s government began to overhaul “the recognition and enforcement of intellectual property rights, in part to avoid the increasingly rigorous trade restrictions imposed by the United States. Stephen Zamora and his colleagues (2005, at 643-44) document how Mexico completely revamped intellectual property as part of its entry into NAFTA and the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) in 1994.
This “Second Enclosure Movement” of fortified IPRs in a global legal environment will result in social disutilities such as undermining scientific norms and commercialize publicly funded research. The editors describe the efforts of the core countries to ratchet up IPRs in undeveloped countries as essentially exporting a dysfunctional system to the rest of the world (p.23). The editors describe efforts of a few core countries, notably France and Sweden, to explore the impact of expansionary IPRs on the social welfare of less developed countries (p.27). The contributors develop these themes in subsequent chapters.
In his book, Immanuel Wallerstein (1976) explains how a few front-line countries in Europe dominated core and semi-periphery countries. In the sixteenth century, England, France, Holland formed the first core region. Eastern Europe and Latin America were relatively undeveloped on the periphery, exporting raw materials and labor to the dominant core nations. Finally, semi-peripheries, such as Spain and Portugal, were former core countries on the decline.
Wallerstein’s theory of the world system has a continuing vitality when explaining the globalized intellectual property rights discussed in this volume. In the modern world system, global core powers use trade negotiations to impose the rules, norms and decision-making processes for extracting value from intellectual property. Just as in early capitalism, today’s powerful cartels controlling IPRs raise costs while expropriating resources from the developing world. Many of the contributors conclude that local innovation is thwarted as will access to essential medicines and technologies.
Today’s world system is built upon the bedrock of ever-expanding intellectual property rights. Intellectual property is the crown jewel of the information-based economy in the new millennium. An abyss exists between the principle of equal access to information and the empirical reality of a newly emergent world system trifurcated into the new “core,” “semi-periphery,” and “periphery” countries. Globalized intellectual property rights can be seen in the Internet that connects the home pages for every nation in world, as well as shrinking national boundaries. [*922] International technology transfer (ITT) is conceptualized by the editors as a term “covering mechanisms for shifting information across borders and its effective diffusion into recipient economies (p.11).
The advanced core industrial nations have entered an information age in which the entertainment, pharmaceutical, financial services, and software industries are the dominant stakeholders, displacing the manufacturing-based durable goods economy. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the rise of the World Trade Organization (WTO) signal a new era in which intellectual property rights are enforced across boundaries. TRIPS and the WTO framework are used to develop minimum intellectual property protection for the core countries in less developed periphery and semi-periphery countries.
Whereas Northwest Europe dominated early capitalism, the United States is the hegemonic core country of the twenty-first century world system, and it is outsourcing manufacturing to Mexico and China and services to India. A growing number of U.S. companies are outsourcing manufacturing as well as services to semi-periphery countries such as India. Bellman and Koppel (2005) report that U.S. companies and law firms are even outsourcing legal services, such as patent and trademark searches and applications, to India. In the information-based economy, new technological roadblocks are erected by the core country, limiting access to public goods in the new periphery and semi-periphery. The theory behind liberalized trade is that the result will be more open markets, improved government, and more robust transfer of technology to the less developed periphery and semi-periphery.
The book is divided into four parts, each presenting law and economic perspectives on the general theme of globalization of intellectual property rights. Each paper in Part I analyzes how the concept of intellectual property as “public goods” impacts access to information and technologies in less developed countries. Paul David’s essay on Koyaanisqatsi in Cyberspace critiques the European Union’s sui generis protection for databases and the economic rationale for copyright. David argues that the EU’s fortified protection for databases threatens academic research. He argues that Robert Frost’s ode that “good fences make good neighbors” may apply to cow law but not public goods like IPRs. Each of the essays in this Part is telescopic, raising big issues about the negative impact of expanding global IPRs.
Part II addresses the broad theme of “Innovation and Technology Transfer in a Protectionist Environment.” One of the sections in this part examines how incentives impact global public goods and their transfer of technology to less developed countries. Lawrence Helfer’s superb article on preserving the global genetic commons reviews the “seed wars” in the developing world launched by core nation plant breeders. Helfer argues that the room available within TRIPS to foster technology transfer to developing countries is too small (p.254). He recommends that future work be launched at the level of international law to promote greater [*923] access to technology and suggests greater regulation of the slicing and dicing of IPRs through restrictive licensing practices (p.255).
In Part III, “Sectoral Issues: Essential Medicines and Traditional Knowledge,” a number of articles discuss the law and economics of preserving traditional knowledge in the expanding universe of IPRs. The conflict between expansive IPRs and traditional knowledge can be seen in the Enola bean controversy. In 1999, the United States Patent and Trademark Office awarded a patent for the yellow-seeded cultivar Enola. The patent applicant first obtained these specimens in a bag of different colored seeds purchased in Mexico in 1994. The U.S. patent holder sought a limited monopoly for the Enola bean which was a product of indigenous culture. The downside of TRIPS is that indigenous peoples will inevitably lose control of their traditional knowledge. Part III addresses arguments for and against globalization and its impact on medicine and traditional knowledge. Part IV focuses on “Reform and Regulation,” and the final section proposes reform in the dispute settlement mechanisms of the WTO. Fred Abbott’s piece examines the challenges of ensuring access to essential medicines in an era of expanded patent rights.
This edited volume is the first major study to address comprehensively ways to minimize the social costs and enhance the benefits of the emerging globalized intellectual property regime for the less developed countries. It is the first serious attempt to show how the expansion of intellectual property rights affects public goods. This is a ground-breaking instant classic that will be useful to social scientists, lawyers, and legal academics interested in development. Public policymakers should also read this book to determine the most efficient provision of IPRs as public goods.
The editors contend that public and private interests must be considered in emerging transnational IPRs. All countries – core, periphery and semi-periphery – would benefit from IPRs as a global public good (p.41). This new paradigm of IP rights would be a truly open transnational system of innovation with low barriers for entry to entrepreneurs in less developed countries (p.33). Maskus and Reichman propose a world system in which public safeguards are instituted to prevent expropriation by the core nations. In such an egalitarian world system, “public safeguards should also enable digital telecommunications networks to link the providers of scientific and technical inputs in an endless research commons” (p.33). In addition, they also propose a “moratorium on stronger international IP standards” as a cautious first step to a new transnational creative commons (p.36).
Bellman, Eric, and Koppel, Nathan. 2005. “More U.S. Legal Work Moves to India’s Low-Cost Lawyers. THE WALL STREET JOURNAL, Sept. 28, 2005, p.B1.
Wallerstein, Immanuel. 1976. THE MODERN WORLD SYSTEM: CAPITALIST AGRICULTURE AND THE ORIGINS OF THE EUROPEAN WORLD-ECONOMY IN THE SIXTEENTH CENTURY. New York: Academic Press. [*924]
Zamora, Stephen, José Ramón Cossio, Leonel Pereznieto, Jose Roldan Xopa and David Lopez. 2005. MEXICAN LAW. Oxford: Oxford University Press.
© Copyright 2005 by the author, Michael L. Rustad.