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introduction - ideas workshop

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Antony Taubman

on 26 September 2012

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Transcript of introduction - ideas workshop

Marrakesh 1994: Final Act of the Uruguay Round:
An integrated package of trade law treaties, unprecedented in
the scope of issues covered
the detail of obligations entered into.
Uruguay Round 'single undertaking' a central part of the international legal landscape. 1. TRIPS: recognized that trading partners have a legitimate interest in how they protect each others’ IP 2. WTO, a new international organisation, administering a complex package of multilateral agreements, building IP integrally into the architecture of trade law 3. uniform dispute settlement mechanism, enabling a country to defend its economic interests in the protection of IP rights, through a legal process TRIPS: Agreement on
Trade-Related Aspects
of IP Rights OR agreement that IP
trade-related ... including three remarkable developments... From IP as a possible EXCEPTION to trade rules... ... to IP as the SUBJECT of trade rules... Each of these a negotiated outcome, not an inevitability ... and the very idea of TRIPS and its place in the WTO were questioned Trade theory: economic benefits from more open markets But TRIPS is about restricting certain forms of trade (while maintaining legitimate trade) In what sense is TRIPS about "market access''? So - some 18 years later - where are we now? ... to a kind of trade IN IP? An idea of "legitimate trade"?
A role for trade rules in suppressing "illegitimate trade"?
Roots of TRIPS in GATT work on counterfeit trade while TRIPS was being concluded: Technological change, and the pure trade in knowledge products:
international trade in digital products
detaching the value of intellectual works – like songs, news articles, and software – from the physical media that carried them
creating a growing trend towards transactions purely in knowledge products. Intangible factors figured into economic growth theory:
‘new growth theory’ the development of new technology and human capital had been considered as external (‘exogenous’) when modeling economic growth;
new growth theory included these factors as ‘endogenous’ and sought to build them into economic model.
“most important job for economic policy is to create an institutional environment that supports technological change.” (Paul Romer) IP takes central place in economic strategies and trade interests:
innovation and technological development as a central ingredient in economic development
seeing technology and human capital as a factor of production, alongside the classical factors of land, labour and capital stock.
closer attention paid to how it should be managed.
strategic approach to knowledge management as an integral part of their economic infrastructure. Mobile phone ringtones at times recorded at up to 10% of music market
March 2012: 25 billion iPhone/iPad Apps, a non-existent market in June 2008
USD 2.5 billion paid to app developers
over 16 billion songs sold on iTunes 1995: Predicting trade in bits
not trade in atoms (Negroponte) BUT SOME QUESTIONS REMAIN Law and policy:
is TRIPS about 'market access'?
what is the basis for a TRIPS dispute?
'nullification and impairment of benefits'?
but what benefits?
what is 'legitimate' and 'illegitimate' trade? Empirical, methodological:
How to count or measure the IP component of trade in goods?
How to count or measure the IP component of trade in services?
How about trade in IP licenses? trade-related aspects of intellectual property intellectual property-related aspects of trade "rethinking
trade related aspects of intellectual property rights
in today's global economy" "Rethinking TRIPS ??" Members,

Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade; Books, music and software are not in themselves new commercial products.
It is just that prior to the advent of e-commerce, they were treated as goods because they had to be delivered in the form of a carrier media, be it paper, cassettes or diskettes etc. and those carrier media were classified as goods.
It may also not be a coincidence that all these three examples, without a carrier medium are intangible goods considered under the ambit of intellectual property rights.
Could such products than be simply considered as trade in intellectual property rights and not be classified as a good or a service? The internet is as much a trade pact as an invention … Just as a free-trade agreement between countries increases the size of the market and boosts gains from trade, so the internet led to greater gains from the exchange of data and allowed innovation to flourish. From 'behind the border'
to 'beyond borders'? ...but borders are still in business But in the mid-1990s, Borders lost its edge.
"It made a pretty big bet in merchandising. [Borders] went heavy into CD music sales and DVD, just as the industry was going digital. And at that same time, Barnes & Noble was pulling back," says Peter Wahlstrom, who tracks Barnes & Noble for the investment research firm Morningstar.
He says Barnes & Noble also invested in beefing up its online sales. Eventually, it also developed its own e-reader, the Nook.
Borders did not. Instead, it expanded its physical plant, refurbished its stores and outsourced its online sales operation to Amazon.
"In our view, that was more like handing the keys over to a direct competitor," Wahlstrom says.
Indeed, outside a Borders bookstore in Arlington, Va., shoppers say they rarely buy books the old-fashioned way.
"I'll go to Borders to find a book, and then I'll to go to Amazon to buy it, generally," customer Jennifer Geier says.
from Why Borders Failed While Barnes & Noble Survived, by Yuki Noguchi, NPR, All Things Considered, July 19 2011) well... 1) The economics and statistics path:
What is the current thinking about the 'IP-related aspects of trade' that can be gleaned from the discipline of economics and from statistical analysis?
What positive insights and suggestions for future trends do the theory and the statistics offer?
What are the limitations of these approaches - does economic theory adequately reflect patterns of actual use and exercise of IP rights;
and what is the capacity of current statistical methodology to capture effectively the true IP component of international trade and the value of commercial exchanges in IP licences?
Do technology-driven and commercially-driven changes, such as the 'made in the world' trend of globalised production chains, the emergence of a trade in 'pure' IP in the form of digital content, and technological rather than legal means of structuring access to protected content, represent an erosion of the territorially-based system of IP rights, or do they, rather, constitute a logical culmination, as 'trade' in IP rights and licenses per se becomes a central part of international commerce? 2)The legal and institutional path:

•After some fifteen years' practical experience of IP standards within the framework of international trade law, what legal understanding has emerged about the interplay between these once largely distinct fields of law?

•What is the appropriate role of the national policymaker and legislator, operating within an ever more complex array of international legal instruments, and confronting a challenging set of issues economic and trade policy issues - and wider questions ranging from biodiversity to access to medicines?

•What should be the future pathways for setting IP standards by multilateral institutions working on IP law and policy, as domestic and regional activity continues apace in norm-setting, and may come to rival them in institutional and administrative matters?
3)The industry and sectoral path:

•Given the distinct character of different IP rights and the ever-growing diversity in business models and forms of using IP rights in different sectors, and the, is it helpful to speak of 'trade and IP' in a general sense at all?

•What are the current and likely trends in distinct sectors - creative industries, information technology, health, environmental technologies, and branded goods?

•Is there a differentiation narrative - ever more diverse ideas about IP in different sectors - or a convergence narrative - a trend towards similar patterns of trade in access to valuable content? Or both at once?
4)The public policy path:

•Just as the WTO is called to address an array of 'trade and…' questions (… and environment, … and health, … and development, …), the inclusion of IP rules within the international trade law system via the TRIPS Agreement has sparked a series of 'TRIPS and…' policy debates. How can the international IP framework, including the TRIPS Agreement, deal with such broader policy questions as health, climate change, and biodiversity?
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