Regulation from Above: International Organization & International Law

Intellectual Property Rights

From the WTO web site on TRIPS: “Intellectual property rights are the rights given to people over the creations of their minds.”

Private property (PP) is at the heart of capitalism:

With any new product, it is important to establish proprietary rights

John Locke

Milton Friedman

Improving nature through labor entitles one to ownership

Returns from property encourage effort to be more

productive

Only private property provides returns required to foster individual initiative and invention

Kenneth Arrow

If "information is not property, the incentives to create it will be lacking. Patents and copyrights are social innovations designed to create artificial scarcities where none exist naturally... These scarcities are intended to create the needed incentives for acquiring information. (p. 125, in: "The economics of information: an exposition," Empirica 23, #2 (1996):119-28.)

Intellectual property rights (IPRs) create private property, scarcity, monopoly, and incentive—or so it is said—which allows owners to reap “appropriate” profits

IPRs are title to forms of knowledge that prevent

non-owners from use with-out payment or

license

Trademarks Patents Copyrights

One had to apply for a patent or copyright in every

country

Failure to patent meant your book or invention could be

pirated

Paris Convention of 1882 est. uniform int’l

patents

Berne Convention of 1886 est. uniform

copyrights

Until well into the 20th century, the U.S. was a signatory to neither

Historically, IPRs were granted nationally

What are the effects of IPR monopolies?

Owners of IPRs enjoy a monopoly for a specified period

of time

Others must buy a license and pay

royalties to use or produce the good

The high costs of some innovations are impossible for the poor to pay

Monopoly prices may make some goods

inaccessible to the poor

New technologies remain under control of corporations in rich

countries

Poor countries have access only to older

generation technologies

Power relations are maintained via the control of knowledge and goods

Open-source intellectual goods are

faced with a restrictive environment

Global political implications of living on the commodity frontier

• People & things come to be valued in the market rather than for their social roles

• Since commodities have limited use value, they tend to be discarded rather easily

• A focus on consumption foregrounds self-interest and devalues common good

• Bonds of trust and mutual obligation are eroded and destroyed

• This feeds back into social relations within and among groups, and into insecurity

• What is “regulation?” How does it differ from rules, norms and laws?

• What does it mean to regulate at the “global level?” Does it differ from “international?”

• How are global regulations made? Who is the authorized author or such regulations?

• How are global regulations enforced?• TRIPS as an example of global regulation

Theories of Global Regulation

How are global regulations enforced, there being no world government with police

power?

National entities work together and pool police power

International organizations can issue judgments and orders against offending states, e.g., UN Security Council

States can impose economic sanctions and threats against violators—individual and collective

And, of course, there is always force…

What is regulation?Does this picture demonstrate regulation?

Regulation can mean to “regulate” operation, as in to maintain stable functioning.

Or, it can be a rule mean to control or manage individual or collective behaviors and practices

A law is a regulation, but a regulation does not have to be a law

•Customs and norms

•Administrative rules

•Habit-driven behaviors

Generally, regulations are formulated by authorities—when people complain about “over-regulation,” they tend to refer to state-mandated controls, limits, obligations

Regulations are intended to

1. Control or limit behaviors & practices that harm social good;

2. Provide benefits to or impose costs on specific parties.

Depending on whether regulations are administrative rules or laws, the manner of enforcement may differ: judicial vs. police power

There is no comparable international or global authority—is there?

Societies have long had rules governing their interactions: these became known as “treaties”—normally bilateral

States developed and adopted rules and practices regulating their relationships: diplomacy

Over time, states found it expedient to develop formal arrangements for regulating their interactions: int’l law

Public

Private

Civil

Treaties, conventions, protocols, bilateral memoranda, unilateral

Applies only to states:

Kyoto, WTO, NATO, MOU, Super 301

Self-enforcing contractual agreements

Applies only to private corporations &

associations: Merchant law, private contract

law, arbitration

Self-enforcing & municipal-origin laws, standards,

norms, conventions

Applies to individual actors: EU law, NAFTA,

Int’l Org. for Stand. (ISO), corp. soc.

Responsibility, ICC

There are three general types of international law

Public international laws are formulated by “states in congress” to apply only to states

State representatives meet to discuss and legislate on matters deemed to be of common concern: UN conferences, summit meetings, int’l agency meetings, etc.

Principles, e.g., human rights

Policies, e.g., climate change

Practices, e.g., trade rules

When a state signs an int’l agreement, it is understood that it will become part of municipal (domestic) law and enforced by domestic authorities

Civil “international” regulations and laws are formulated or legislated by various entities and apply to individuals, corporations and other non-

state actors NAFTA includes various provisions specifying the rights and responsibilities of corporate actors

The International Organisation for Standardisation (ISO) sets internationally- recognized standards for all kinds of product, while the Codex Alimentarius does the same for food

Corporate codes of conduct and corporate social responsibility are intended to regulate standards through commodity chains

EU laws specify Union-wide rights for citizens of member countries, and before the European Court of Justice

Private “international law” consists of self-enforcing contracts and agreements between private parties

Historically, contract is enforceable in the jurisdiction in which a violation occurs: How does one make and enforce contracts actionable in more than one national jurisdiction, such as a child custody agreement?

Rather than fighting in the courts over who has jurisdiction, parties agree to third-party by private courts, mediators, arbitration

However, enforcement may rely on decisions of domestic courts and states can reject the findings of private courts

Sometime during the 1960s and 1970s, the economic potential of technological and biological patents became of

central concern to the U.S. government

TRIPS (Trade-Related Aspects of Intellectual Property Rights) was a political and social innovation by the United States to enable corporations to assert control over products

•S/he who can establish binding rules of the global political economy can do so to his/her advantage

TRIPS—Trade Related Aspects of Intellectual Property Rights

•International treaties required mutual recognition of domestic IPR systems, but not as a precondition for economic relationships

• U.S. pharma took the lead in pushing for a multilaterally-binding system of IPR recognition, which was eventually embedded in the WTO as TRIPS

• Accession to the WTO requires signing on to TRIPS, recognizing and adhering to its standards and requirements, and agreeing to dispute resolution procedures when necessary

•TRIPS is domestically-binding, and the WTO can order national courts to enforce its findings against parties who violate IPRs

•The WTO can also require payment of damages in the event the offending country does not remedy the violation

•See http://www.wto.org/english/tratop_e/trips_e/trips_e.htm