Who Gets What and Why in International Intellectual Property Regulation

On June 29, AGI hosted a seminar on conflicts in the international regulation of intellectual property rights. Justus Dreyling, a DAAD/AGI Research Fellow in May and June 2016, presented his research on conflicts over intellectual property protection for educational materials and agricultural seeds. Recent negotiations on copyright protection and access to cultural and educational materials for people with disabilities have been fiercely contested. The dispute over property rights for crops and seeds and the conditions of use for smallholder farmers is longstanding and equally controversial. In both cases, consumer and user groups from the European Union and the United States in coalition with developing countries have been able to challenge regulatory capture—albeit to varying extents. The presentation was followed by a debate on differences of intellectual property systems in Germany and the United States and the evolution of knowledge-producing industries on both sides of the Atlantic.

Common wisdom holds that the European Union, the United States, and resident knowledge-producing industries dominate international intellectual property regulation. However, more recently, weaker actors have influenced outcomes in international intellectual property regulation in cases related to medicines, agriculture, education, and privacy. As global markets, including the internet, have become more important, creative and innovative industries from the European Union and the United States have demanded higher international standards for intellectual property protection and enforcement. Developing countries and an emerging consumer and user movement in the developed world, by contrast, have opposed ever-stricter regulation. These actors argue that many essential knowledge goods have become unaffordable and that flexibilities to intellectual property protection remain an important tool to promote the public good. Moreover, new business models have developed that benefit from weaker intellectual property protection. Conflicts over intellectual property regulation have become more complex, which has enabled the formation of change coalitions between developing countries, consumer groups, and new industries.

One important debate in copyright revolves around its implications for education, particularly for people with visual disabilities. Only an estimated 5 percent of all published works are available in accessible formats. The lack of access to books, especially textbooks and other educational materials, for people with print disabilities is an important barrier to education and full social participation. Copyright is an important obstacle to better access. While flexibilities exist in most developed countries, many developing countries have had difficulties in drafting exceptions and limitations that are compatible with international treaty obligations. Moreover, the export of accessible books has been a point of contention in international copyright law. While this has been discussed internationally since the late 1970s, no solution has been reached until very recently. In June 2013, the members of the World Intellectual Property Organization have adopted the so-called Marrakesh Treaty, which sets a mandatory exception for people with visual disabilities and facilitates the cross-border transfer of accessible books. Initially, rights holders and EU and U.S. negotiators had opposed a legally binding international treaty. They believed that limitations at the international level would lead to a slippery slope, undermining the multilateral framework of protection. However, a coalition between developing countries, disability associations, and user organizations from the European and the United States was able to exert pressure on negotiators both at the international level and at the domestic level. However, treaty ratification remains an issue in the United States and the European Union.

In agriculture, access to seeds for smallholder farmers in developing countries is a controversial topic. Developed countries have seen a separation of farming and breeding since the late 19th century. In many developing countries, farming is less commercialized and less separated from breeding. International standards of protection of plant varieties, however, are influenced by the intellectual property systems of developed countries. Nowadays, many developing countries are highly dependent on proprietary seeds. This is a problem for communities that rely on traditional farming because those seeds cannot be legally saved, shared, or reused. As a result, price spikes of proprietary seeds have direct implications for their livelihood. Moreover, developing countries argue that biotechnology firms from the developed world often use traditional knowledge about beneficial uses of local plants without compensation. The United States and the European Union largely promote treaties that set high standards for protection, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the International Union for the Protection of New Varieties of Plants (UPOV). They have also put pressure on developing countries bilaterally through trade negotiations to adopt more stringent standards of protection. Yet, a number of treaties that build on different conceptions of intellectual property have been adopted since the 1990s. Here, developing countries have, at least initially, formed coalitions with actors from developed countries that seek better protection of biological diversity. The growing incoherence of treaty obligations has created leeway for implementation of intellectual property rules for a number of developing countries. Yet, it has also made finding common solutions to shared problems more difficult.

Conflicts over international intellectual property regulation have important distributional consequences. They also have implications for the production of knowledge, probably the most important asset in today’s economy. However, non-zero sum solutions are often possible, as flexibilities do not generally undermine intellectual property rights. Yet, the balancing of protection and flexibilities is a delicate task that requires the input from a variety of stakeholders and experts. Both of the cases presented in this workshop see a variety of conflicts between developed and developing countries, business and consumers, as well as old and new industries. Intellectual property rights have become a more important topic in international negotiations and public debates on both sides of the Atlantic. Yet, there is no indication of an emerging consensus.

Contact Ms. Elizabeth Caruth at ecaruth@aicgs.org with any questions.