A global effort will be needed to keep knowledge in the public domain says Peter Drahos is explaining the devastating impact of the 1995 World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights, TRIPS
October 31, 2016 Produced by Lynn Fries
LYNN FRIES: Welcome to The Real News, I’m Lynn Fries in Geneva. This is Part 7, the concluding segment of a series with Peter Drahos who is explaining the story of intellectual property linked to trade.
Joining us from Australia, Peter Drahos is a professor at the Australian National University, the School of Regulation and Global Governance. He holds a Chair in Intellectual Property at Queen Mary, the University of London. Peter Drahos is co-author of Information Feudalism: Who Owns the Knowledge Economy? and award winning Global Business Regulation. Welcome, Peter.
PETER DRAHOS: Thank you, Lynn.
FRIES: In explaining the story of TRIPS, you spoke of an inner circle of multinationals who essentially told their respective governments this is what we want. This as part of a consensus building where key US industry players were the first ring of consensus having come up with the idea that TRIPS turned into reality – that of placing intellectual property rights into the global structure of free trade agreements. And you spoke of the complex injustice this inflicted on the world. Talk more about your thoughts on this.
DRAHOS: I think one the interesting things about the whole history of intellectual property rights and in particularly the role that the United States has played is the assumption that the US will always be a winner in this particular game. As I’ve tried to explain, it’s not clear that the US state is necessarily winning. But also one has to bear in mind the lesson of history. Power shifts in the world. And it may be that one day the United States is on the receiving end of some of these intellectual property monopolies. And so I think it is always wise not to go to extreme lengths in supporting intellectual property rights. I mean imagine a world in which for example China becomes the dominant intellectual property power. China is investing a lot in R&D now in public terms and it’s trying to climb the ladder. Should we really be putting such powerful tools in the hands of powerful countries? So, I think the criticisms that one might make of excessively strong intellectual property rights apply to whatever country is wielding them. I think it makes sense to think strategically in the long term that one might possibly be on the receiving end of some of these injustices rather than always being the one meting out the injustice.
FRIES: Do you there will be that kind of strategic rethink coming out the US?
DRAHOS: I think in the case of the United States, it’s a difficult situation there because of course large multinationals are capable of making large campaign donations. And so, while US citizens have a great track record in obtaining reform when one thinks back to the work of Ralph Nader for example or Ester Peterson or Rachel Carson. There have been these historically great figures in the United States. Overcoming the problems within US democracy, the connection between multinationals, the profitability of intellectual property rights and democratic representation.
Now that is a profound problem. And that’s not going to be a problem that’s easy to overcome. And there’s little doubt that one of the reasons that we have TRIPS is precisely because US multinationals at that time essentially were able to influence US Congress to vote for a package of agreements about which there was a lot of doubt. And that this continues to be true. That US multinationals are disproportionately influential within US democracy when it comes to free trade agreements. Now it may be the case that we have reached a turning point and that the Transpacific Partnership may perhaps not get through. My own view is that it that it’s probably likely that at some stage we will see the Transpacific Partnership enacted. If not immediately at some time in the future.
So, I do think there is a long road ahead of us. But I also think that citizen awareness and the desire to make this an election issue and that’s what I think is important about the TPP. The fact that for the first time we have a free trade agreement in which intellectual property rights are being publicly talked about is a very, very positive step. That’s a huge step from the kind of plotting that we saw in relation to TRIPS. So, that’s progress.
FRIES: In the long road ahead, what sorts of things can [bring] to bear that might help rein in problems with intellectual property rights?
DRAHOS: Historically, competition law or in the United States, antitrust law, has been important in curbing the abuses of intellectual property rights. But here I think one of the issues is that the interaction between competition law and intellectual property law is a technically complicated matter. The second issue is that there are only so many resources that competition law authorities have. And in particular, competition law authorities in developing countries are extremely weak or don’t have the sort of strength of the antitrust division in the United States for example. So, while competition law has some potential in terms of regulating the abuses by intellectual property owners one shouldn’t put too much weight on that. I think it would be a mistake to think this will solve all of our problems.
If we can’t rely on competition law alone a good question to ask is what are we to do about the globalization of intellectual property rights. I think the first important point is to make, is to educate ourselves and that is happening. I mean, citizens around the world are really beginning to understand that these are monopoly privileges that really should never have been placed in the trade regime. So, there is a lot of resistance now. And we see this in the debates around the Transpacific Partnership and many other trade agreements. A lot of criticism of these things.
But at a practical level we’re also seeing countries come up with ways to combat monopoly privileges. I mean in Brazil for example when it comes to patents over pharmaceutical compounds the Brazilian patent office does not have the final word. It’s the Brazilian therapeutic goods regulatory entity that has the final word. In other words, people working in the public health area in Brazil are looking at these patents and asking whether in fact there is really genuine invention here. And in India as well there are provisions in the Indian Patents Act that make it more difficult for companies to obtain patents.
I also think we can see examples elsewhere. For example, in the area of software, we have the Free Software Movement, that pushed the idea that a source code should be something that stays in the public domain. We also see the open source movement. Not just in the area of copyright but people are now beginning to talk about open source in the area of biotechnology.
So, I think aside from that some countries, Australia, for example, take steps to regulate the price of patented medicines. Australia’s pharmaceutical benefits scheme is a very good example of a way of approaching the control of patented medicines. And there are lots of good ideas out there about what to do about the system. So, in a way although the globalization of intellectual property rights is a bleak period of history in which a relatively small number of multinationals were able to entrench a set of monopoly privileges that do not serve the interests of citizens.
When we look at the world now we see fight back taking place everywhere and a real questioning of these agreements. And people can do things. One can support one’s library. One can support open source software. There are lots of things that we can do as citizens about keeping knowledge in the public domain. So, I’m cheered by the fact that there is a huge amount of constructive activism in the world around these issues.
FRIES: And a concluding thought?
DRAHOS: When it comes to fighting the globalization of these rights we can learn from the way in which the architects of TRIPS approached the problem. We have to build bigger and bigger circles of consensus. That’s what they did and that’s what we have to do. We as citizens everywhere I think have to realize that we have a common set of global interests. And those global interests relate to decent standards of public health, access to medicines, affordable systems of education, systems in which farmers can make a profit in which they are not burdened by excessive license fees.
So farmers, librarians, educators, cultural innovators, young people who want to culturally innovate, who want to parody for example a trade mark and suddenly find themselves threatened become they’re making fun of somebody. I mean there are so many people that have an interest in this. We live in a networked world. I see more and more networking amongst NGOs. I think there is a growing sense in which we have to realize we are not alone. That we can fight back.
Now it is a slow process. I think that’s just inevitable. It’s a complex problem. But at the same time I think the fact that we see in Europe people talking about free trade agreements. We see people talking about things in the United States. We see people talking about these things in Australia. This is progress. Now it’s not as quick as you and I would like it. It’s not as quick as many citizens would like it. But I think we have to understand that the scale of the problem is very big and we are up against very powerful players. And we also have to understand that it is about reinvigorating our democracies. That’s really in the end what this is about. It’s about making representation work.
Multinationals basically made representation work for them and for their business models. We as citizens have to make representation work for us. And I think it has taken a long time for us to realize that. That we can’t trust the law anymore. Because unfortunately the law is shaped by multinationals. Noam Chomsky says that “the weak get the rule of law and the powerful get the rule of power”. So, we in a sense have to take power back. That’s what a lot of this is about. And I am actually cheered by the pace of developments. Now I know it doesn’t seem very quick but I think that in a decade or two we are going to be a lot further down that road than we are at the moment.
FRIES: We’ll have to leave it there and on that thought, conclude this series on IP linked to trade with Peter Drahos. Peter Drahos, thank you.
DRAHOS: Thank you.
FRIES: And thank you for joining us on The Real News Network.
Peter Drahos is Professor of Law and Governance in the Law Department at the European University Institute, Florence. He holds a Chair in Intellectual Property at Queen Mary, University of London. He is a member of the Academy of Social Sciences in Australia. In 2004 he and his co-author Professor John Braithwaite won the Grawemeyer Award in Ideas Improving World Order for their book Global Business Regulation.
Originally published at TRNN