Which countries follow American intellectual property laws?

Knowledge and property

Corinna Heineke

To person

Corinna Heineke is a political scientist and is doing her doctorate at the University of Kassel in the field of globalization and politics. Her research interests are in the political economy of traditional knowledge and genetic resources and the globalization of intellectual property rights.

The globalization of intellectual property rights in the North-South conflict

The link between intellectual property law and global trade policy ensures that every WTO member state must comply with the provisions on the protection of intellectual property - even if this can have serious consequences for developing countries.

Taro plants in Malaysia: Bioprospection is the search for as yet unknown active ingredients - the knowledge of the local population was often used here without them having a share in the later profit (biopiracy). (& copy picture-alliance / OKAPIA KG, Germany)

Adventure TRIPS - a kind of adventure trip for developing countries has always set the signing of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in motion. When it came into force on January 1, 1995, most governments in the South knew that they would have to make fundamental changes to their intellectual property laws. But that the TRIPS agreement would trigger a flood of regulations as well as much stronger property protection standards, especially in the area of ​​drug production and nutrition, could not be foreseen at the time.

The basic principle of intellectual property rights goes back to the 14th century. Governments and royalty granted a temporary monopoly on the marketing of an invention or a commercial model. [1] With this allocation of exclusive rights of use, they wanted to create an incentive for the import of craft and technical innovations and thus laid the foundation for today's patent. The privileges written down in litterae patentes (open letters) included e.g. B. also tax exemption, allotment of land or interest-free loans. [2] Since the beginning of the 18th century - initially in Great Britain - a disclosure of the manufacturing process was demanded in return for the exclusive rights of the inventor. [3] This must enable an expert [4] from the same technical field to recreate the invention. That intellectual monopoly rights [5] promote technical innovation and provide the general public with information about the manufacture of new processes and products are two assumptions that are still used today to justify the exclusion of third parties from the use of patented products. [6]

Innovation is perceived as the central basis of economic growth and is therefore also part of the development paradigm: Development - a key objective of the countries of the South and international organizations - initially followed the linear industrialization model of the OECD countries. The assumption underlying traditional development theory was that industrialization and international trade would also increase social prosperity. But the inequalities between North and South have increased since the great wave of decolonization after World War II: Income differences between poor and rich countries have doubled in the last forty years, so that the 20 richest countries now have an average income that is 37 times as high is like the median income in the 20 poorest countries. [7]

Although the official development discourse has also integrated ecological and social goals since at least the Brundtland report "Our Common Future" [8] published in 1987, the enforcement of intellectual property rights is still based on the neoclassical model of prosperity. The argument runs along the line that intellectual property is necessary as an incentive for any creative activity of the rational homo oeconomicus, that the rational homo oeconomicus only invests if his investments can be refinanced through monopoly rights and that investments in knowledge-based industries [9] would bring growth, which in turn would lead to more Employment and thus produce prosperity. [10] From this perspective, intellectual property is constructed as the engine of development for the countries of the so-called Third World. At the same time, however, on the basis of the marginalized position of the developing countries, it is argued that technology transfer from the increasingly knowledge-based industries of the OECD countries is only possible if the exclusive rights of use of innovative companies are adequately protected. A low level of property protection is seen as an obstacle to trade. The integration of the protection of intellectual property rights into the multilateral trade regime of the WTO was an important step in initiating the globalization of intellectual property rights. Their discursive development is traced in this article.

The penetration of intellectual property rights into all areas of collectively produced knowledge (knowledge commons) is also embedded in the discourse on the information and knowledge society. Accordingly, in the last 30 to 40 years, information and knowledge have become increasingly important as individual production factors alongside the production factors of industrial society - land, capital and labor. Jessop shows, however, that this view naturalizes production factors and suppresses how they came about socially and how they flow into the economic process. [11] As other articles in this volume show [12], according to Jessop, knowledge must first be made a commodity, because knowledge is a non-rival and therefore a public good, i.e. its use does not lead to other users not using it at all or in can use them to a lesser extent. Intellectual property rights are thus represented as a legal instrument with which a public good is transformed into a commodity through the introduction of license fees for the use of patented or copyrighted products. Under the conditions of globalization, in the course of which new markets are constantly being opened up, these monopoly rights contribute to making it possible to generate profits from an otherwise difficult to pinpoint good.

In contrast, securing basic needs in the countries of the South was possible primarily because knowledge was shared and collectively further developed. For example, seeds were freely exchanged in rural communities and repeatedly adapted to local climatic and ecological conditions. Together with agriculture based on mixed cultivation, the risk of pest infestation and crop failure could thus be limited. By reproducing the seeds from their own harvest, there were no costs for seeds. Likewise, an estimated 80 percent of the rural population in the Third World use traditional remedies. [13] The necessary knowledge about the places where medicinal plants were found, their preparation and use was passed on and further developed from generation to generation. The meeting of a non-exclusive and a knowledge model based on exclusive exploitation becomes particularly clear in numerous cases of so-called biopiracy, the effects of which I would like to discuss in the section "Jungle Tour Included". [14] Here, transnational companies acquire collectively developed crops from developing countries and have them protected under property law.

The collective use of cultivated plants and the need to secure basic health care for poor sections of the population meant that biological material and medicines were exempt from patentability in many developing countries until the TRIPS Agreement was passed. And in many OECD countries, too, in line with the increasing solvency of consumers, z. B. Pharmaceutical and chemical substances only patented since the sixties and seventies. In Germany and France, for example, pharmaceuticals have only been patented since 1967, in Italy since 1979 and in Spain only since 1992. [15]

So if, even from the perspective of a classic industrialization policy, the advantages of a western-style intellectual property regime are at least questionable, the question arises as to why developing countries agreed to the TRIPS agreement. The present article will therefore first trace the historical development of an international regime for the protection of trade-related intellectual property rights. In this context, the negotiating imbalances of the Uruguay Round, the seventh trade round of the General Agreement on Tariffs and Trade (GATT), play a role. I will then discuss some of the implications of the consolidation of intellectual property rights for the countries of the South in terms of the supply of essential medicines and food security. Finally, these implications of the TRIPS Agreement are embedded in a larger framework of recent developments, particularly in the World Intellectual Property Organization (WIPO).

[1] Trademarks, which can be extended as often as desired, were used as name markings for bricks, leather or cooking vessels in ancient times; World Intellectual Property Organization (WIPO) (1997), p. 20.
[2] Cf. David (1933), p. 44; WIPO (1997), p. 17.
[3] See the information on the UK Patent Office website: http://www.patent.gov.uk/patent/whatis/
fivehundred / eighteenth.htm.
[4] For reasons of gender equality and better legibility, I use the feminine and masculine form alternately here and elsewhere.
[5] The concept of intellectual monopoly rights is introduced by Attac, see Bödeker / Moldenhauer / Rubbel (2005), p. 9.
[6] The distinction between immateriality and materiality often fades: While intellectual property rights are theoretically intended to protect new ideas for the manufacture of technical devices or processes, they are always dependent on material carriers. For example, software depends on CDs or hard drives, genetic information on seeds or physical substances; see Nuss (2002), p. 1. With the monopoly right, access to the material carriers of knowledge - e. B. by high costs - difficult. For the basic assumptions of copyright see also the contributions by Thomas Dreier / Georg Nolte, Hannes Siegrist and Till Kreutzer in this volume.
[7] See World Development Report (2001/01), quoted in Drahos (2002), p. 2.
[8] World Commission on Environment and Development (1987).
[9] With knowledge-based industries it is meant that the added value in production results to an ever greater extent from knowledge and information. B. from molecular biological and chemical information in the life science industries or from the knowledge about the adequate arrangement of data material in the software industry.
[10] See Nuss (2002), pp. 5-6. As Sabine Nuss (p. 12) also shows, it works Property Rights Theory von Douglass North - a further development of neoclassical economy that also includes the role of property and disposition rights - even assumes that the poorer countries have inefficient economies because they only insufficiently secure property rights.
[11] Cf. Jessop (2000), p. 2.
[12] Cf. B. the contributions by Klaus Goldhammer and Thomas Dreier / Georg Nolte.
[13] See Ribeiro (2002).
[14] Cf. also the contribution by Joscha Wullweber in this volume.
[15] See Khor (2002), pp. 205-206; see also Cullet (2003), p. 141.