Within the field of intellectual property law, one issue that very frequently dichotomises opinion is the, frequently cited yet somewhat vague, concept of ‘balance’. This is no small part due to the fact that in terms of the international intellectual property system, this concept of maintaining a ‘balance’ is loosely defined and multi-layered in nature: it is applicable in almost all regards.(1) For example, scholars and policy-makers often refer to the balancing of the IP system, but what two opposing forces is the system balancing? Public good vs Private interests? North vs South? Over-regulation vs Laissez-faire? And to whose detriment is an imbalance of the system? This blog will explore the concept of balance in terms of the IP system and, in doing so, will seek to highlight the two most significant opposing forces that the system should be concerned with balancing.
The Link between Economics and Law in Intellectual Property
Firstly, it is important to consider the inescapable link between economics and law in any discussion of intellectual property. Intellectual property is primarily concerned with the promotion and protection of incentives and thus, in motivating producers to produce.(2) This is one of the founding blocks of modern economic society, based upon the market mechanism. As such, it is economic theory that underpins the law; there to ensure the proper protection of IP rights and thus, to maintain an efficient allocation of resources at the macro-economic level.
Economics, Law and Development
‘Balance’ in the international IP system should thus take account of both economics and law. Given that the WTO is based around trade and the theory that liberalized trade will benefit all members, it seems fair to suggest that development is an important facet of the WTO. Following a regime shift, the WTO with TRIPS has also become centrally important in IP discussion. It follows then, when one refers to ‘balance’ in the IP system it should be between the protection of IP rights, (and thus, incentives), and the economic development of developed and developing countries alike. One of the key economic arguments that the WTO bases a great deal of its trade liberalization policies on is that with more trade, developing countries will grow at a faster rate because of the diffusion of technology and knowledge from the developed countries, who finance the research and development. Inequality is thus said to be positively affected. This benefit, however, is greatly limited by intellectual property, and specifically, stringent IP protection that creates issues such as the Access to Medicine and Access to Knowledge controversies.(3) The two economic theories are in direct conflict with one another.
To conclude, given that the WTO is currently the key forum for both intellectual property and development it seems clear that when referring to ‘balance’ in the IP system, the emphasis should be between these two opposing forces – protecting intellectual property and aiding the economic advancement of developing countries. The potential ‘regime shift’ away from the WTO towards plurilateral agreements such as ACTA detracts from such an argument to an extent however these agreements are still based on trade. While the WTO remains centrally important, the conflict between the push for more free trade and intellectual property protection is there for all to see.
(2) Joseph E Stiglitz, Claude Henry, ‘Intellectual Property, Dissemination of Innovation and Sustainable Development’, Global Policy, 1 (3) October, (John Wiley & Sons, 2010)
(3) Peter M Gerhart, ‘The Tragedy of Trips’, Michigan State Law Review, (2007) 183-184, Available online at:http://www.msulawreview.org/PDFS/2007/1/Gerhart.pdf