Intellectual Property & Global Policy
| DOI | http://doi.org/10.1111/1758-5899.12381 |
| Date | 01 May 2017 |
| Published date | 01 May 2017 |
Intellectual Property & Global Policy
Matthew David
Durham University
Debora J. Halbert
University of Hawai’iatM
anoa
Abstract
This article discusses Intellectual Property Rights (IPR) and in particular global IPR expansion. That globally protected intellec-
tual property (IP) is more valuable than ever must be set against the fact that today’s global network capitalism, in which IP is
so valuable, also enables information to circulate beyond IP control. Similarly, global IP expansion and its resistance go hand
in hand, as global IP expansionist policy contains but also encourages infringement. We document this conflict, the paradoxi-
cal space affording it, the boundary disputes that manifest it, and the global IP expansionist policy ‘ratchet’designed, but
which fails, to contain it. We then evaluate global IPRs and the case for extensions, as manifested in treaties such as ACTA,
TPP and TTIP. This evaluation is undertaken though specific examinations of copyright, patent and trademark laws. Claims for
the overall social benefit of global IP harmonisation and expansion policies are rejected.
Policy Implications
•Our first policy recommendation is to reverse the trend towards criminalising acts labelled as ‘piracy’.
•Our second policy recommendation is that the length of time in which IP rights are protected be reduced not expanded.
•Thirdly, forcing all developing countries to enact strong IP rights before they are ready to do so should be halted.
•Our fourth policy recommendation is that we do not offer further depth of coverage to abstractions.
Global IP harmonisation and protection: a
paradoxical ratchet
A triple paradox created by global network capitalism drives
global IP expansionist policy in the post-Cold War age. Glob-
alisation, digital networks and capitalist markets all extend
the potential profitability of IP-rich, ‘immaterial’content yet
global and digital production and distribution networks also
bypass IP regulation. Securing intangibles as ‘property’
enables monopoly prices, and hence encourages infringe-
ment. The very global networks and markets that global IP
extensions can make more profitable for IP holders also
facilitate the wider production and circulation of infringing
copies. Such expansion of infringement is then said to war-
rant further extensions of IP regulation.
Defenders of stronger global IPRs argue that while
extending the monopoly rents offered to innovators,
through longer, wider and deeper IPR protection will
increase incentives to infringe; such rewards must be main-
tained to encourage innovation (May, 2007a). If extending
IPRs raise prices and thereby increases incentives to infringe,
the solution is stronger enforcement and tougher punish-
ments (Patry, 2009). The argument for extension is then pre-
mised upon the assumption that IPRs are the most effective
means of incentivising innovation and its distribution; and
concludes that infringement should be treated as theft. Our
approach is to evaluate the truth of this premise and
conclusion.
We begin by first, outlining the three central paradoxes of
global network capitalism, and then the boundary disputes
that map IP expansion and its resistance. We then docu-
ment today’s global IPR expansion ratchet. The second half
of this article addresses the primary types of intellectual
property –copyrights, patents and trademarks and shows
how global IPR harmonisation and expansion has not
increased incentives nor global social welfare. In conclusion,
we argue that the global IP harmonisation and extension
ratchet is self-perpetuating, but self-limiting, in securing a
narrow interest; and because it does not secure greater
incentive, innovation, nor access to new/better products,
extension is not justified.
The triple paradox of global network capitalism
Firstly, globalisation expands markets and yet simultaneously
makes them less controllable. Globalisation expands markets
for IP-protected products, and hence offers increased profit
opportunities. Outsourcing labour also reduces expense and
increases competition between both workers and non-
IP-protected manufacturers, who bid to actually produce
IP-rich physical goods. Nonetheless, and paradoxically, out-
sourcing production and more distributed markets create
Global Policy (2017) 8:2 doi: 10.1111/1758-5899.12381 ©2016 University of Durham and John Wiley & Sons, Ltd.
Global Policy Volume 8 . Issue 2 . May 2017 149
Research Article
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