A new centre of gravity: centripetal and centrifugal trends in

global economic governance

Globalization and the new world trading order

IMPACTS OF GLOBALISATION FORUM 13-14 August 2009

Not an official view and not for official attribution

or...

on 'and' and 'should'

AND: the challenge of coherence

SHOULD: the challenge of legitimacy

… and AND and SHOULD:

coherence as integral to legitimacy and effectiveness

Centrifugal and centripetal trends in international normsetting

• centripetal forces:– Rationale for regulatory convergence, legislative

coherence and administrative cooperation

• centrifugal forces:– Calls for regulatory diversity and policy flexibility

– But where is the centre of mass, anyway?

Credit: NASA, ESA, and the Hubble Heritage Team (STScI/AURA)-ESA/Hubble Collaboration. Acknowledgement: B. Whitmore (Space Telescope Science Institute) and James Long (ESA/Hubble).

Relocating the centre of mass

Two structural challenges:

• The inverse square law of legitimacy– Proximity confers legitimacy

• Systemic coherence as a zero-sum game– Competing claims to normative legitimacy

Coherence: unity in diversity?

• Rules on IP

• to 'trade and IP'

• Rules on trade-in-goods– To IP in trade– To IP as trade

• ...to 'trade and IP and … ' – health– environment– human rights– food security

Coherence: unity in diversity?

• ...to 'trade and IP and … ' – health– environment– human rights– food security– climate change

mitigation

Reconciliation key to legitimacy and regime effectiveness

the 'should' of legitimacy

AND

the utilitarian

'should'

Legitimacy and localisation• Cooperation on global issues vs local legitimacy:

– What do we expect from international governance?

– What scope for sovereignty, normative self determination?

– What claims over other jurisdictions, in the name of public policy outcomes? Or justice?

• Centripetal forces: the interest in normative convergence

• Centrifugal forces: the interest in regulatory diversity

The age of deglobalization: legitimacy in localisation

Derailing Doha Trade Deal Essential to Saving Climate(From Foreign Policy in Focus, July 28, 2008)

IP and the new global economy

• Moore's law

• One laptop per child vs digital divide

• Trade in bits not atoms (Negroponte)

• An economy of grantors of access (Rifkin)

• The Internet as a protocol – an inflexible rule enabling infinite diversity of interaction

• Interconnectivity and de facto abolition of borders

• Crossborder misappropriation of cultural identity

Worlds apart?

Zero-sum polarities of interests:• Developed world vs developing world• New world vs old world• trade law vs human rights law• bits vs atoms• civil society vs private sector• indigenous world views vs

commodification of culture• ‘strong’ vs ‘weak’ IP protection

Worlds apart?

Regime shifting/forum shopping a challenge for coherence:

• World Health Organization

• World Trade Organization

• World Intellectual Property Organization

• Convention on Biological Diversity

• Human Rights Council

• Food and Agricultural Organization

• World Customs Organization

• World Meteorological Organization

• International Telecommunications Union

• Universal Postal Union

Worlds apart?

• Diffusion of climate change adaptation technology– As a right in itself

– As an instrumental means of attaining rights to food, health, benefits of science

– As a consequence of sound investment climate

– As a consequence of effective protection of IP

– As a consequence of effective use of exceptions and limitations to IP

– As a consequence of competition policy

– As a justification for infant industry protection

“should”Protection of IP should: • contribute to the promotion of technological

innovation and • to the transfer and dissemination of technology, • to the mutual advantage of producers and users

of technological knowledge and • in a manner conducive to social and economic

welfare, and • to a balance of rights and obligations.”

WTO TRIPS Agreement, art. 7

'should':*

– ethical (deontological), – ethical (utilitarian), – legal (obligatory)– aspirational, or – predictive?

• within legal text, guide to broader reading• within policy context, guide to policymaker

– an heuristic?

*: setting aside for now specific questions of treaty interpretation

convergence or flexibility?International rules most often viewed

as a constraint on policymaking, as a reduction of legislative choice, as enforced convergence of national laws

- while promoting trade interests, efficiency, fairness and predictability

But rules may also be seen as a means of safeguarding regulatory diversity

• given the inevitability of cross-border assertion of interests

• Once compliant with the international standards, countries have, in principle, a free hand to explore options – to exercise flexibility

Normsetting in IP• Where is the centre of mass of the international system, and where should it be?– Who owns, who interprets the core international norms?– What is the proper boundary

• Between international organizations?• Between international and municipal law and regulation?

• What is the benchmark for legitimacy?– Whose “rectitude”?– What institutional structure? Compliance mechanisms?

Linkage with public international law/public policy/morality?

• What is international normsetting for anyway?

Normsetting in IP• What is international IP normsetting for?– A collective legislative endeavour?

- A global law of IP? – Defining international boundaries –

setting the scope of legitimate trade complaints, and a cap on retaliation?

– Managed administrative convergence; ‘epistemic communities’ with common regulatory challenges?

– Deliberate production of global public goods?– Giving sectoral effect to broader norms of public

international law/public policy?– All of the above?

• What modalities for normsetting?– A cross-sectoral deal, leveraged through

trade-offs?– ‘Harmonization’ around what centre of

gravity?– Plurilateral, a la carte, voluntary or self-

selected normsetting?– A layered, interactive process of articulating

new norms?

Normsetting in IP• Ambivalent critiques of international

institutions• the ‘strength’, character and purpose of norms• Member State driven vs Secretariat driven models• what expectations and enforcement of compliance? • legitimacy through normative validity, or through

procedural/institutional propriety/inclusiveness

– or actually delivering the goods in practice • value and validity of technical competence

– technical competence a proxy for sectoral capture?

New terms of trade

• Overlapping international negotiations amount to a recalibration of the terms of trade for knowledge resources

– loosely, the terms of trade between ‘providers of access’ to the inputs to innovation and the users of these inputs

– another way of shifting beyond the IP producers/consumers paradigm

– Extending the traditional scope of IP law

New terms of trade• Overlapping international negotiations amount to a

recalibration of the terms of trade for knowledge resources – driven by claims of legitimacy and equity – CBD (multilateral regime on access and equitable

benefit sharing)– WTO/TRIPS (revisiting equitable basis for patents on

inventions using TK and genetic resources)– WIPO (positive rights over TK – innovation as a form

of misappropriation/unfair competition)– FAO International Treaty (equitable dispensation over

commercialization of innovations based on seeds)

TRIPS and...

• WTO TRIPS Agreement: a vector – legal, political, conceptual – for the incorporation of IP standards within trade law paradigm

• TRIPS itself an expression of a recalibration of trade interests

• How are knowledge-trade interests recalibrated through, in reaction to, and then beyond TRIPS?

• 'TRIPS and...' • Human rights, health, environment• 'the social dimension of IP'

Current intersections

• Extension of geographical indication (GI) protection and development of GI register

• Mandatory disclosure of traditional knowledge (TK) and genetic resources in the patent system

• Positive protection of TK as or through IP

• Human rights readings or rewritings of IP system

Current intersections

In each case: – 'Local' concerns seeking global accommodation

• leveraging changes to outcomes in foreign jurisdictions

– Fuelled by a sense of 'rightness' or legitimacy

– Founded on a claim that trade rules must be coherent with broader set of norms

– Taking up tools of trade law and commercial policy, but seeking to blunt their unbridled effect

– Recalibrating terms of trade in the economy of granters of access

Geographical indications

• Thinking locally, acting globally– call for GI protection to take account of its

protection in country of origin– a call linked to sustainable development

• A globalized but locally-rooted idea of 'legitimate trade'

• Local practice to guide or determine legal outcomes globally

traditional knowledge has emerged in turn:

• as a point of resistance to conventional IP norms;

• as a point of pressure for reform and resituating the system; and

• as embodying a distinct set of social and economic interests asserted in trade fora.

- TK as a microcosm of broader trends:‘The Orienting of TRIPS’

TK redefining trade and IP interests

(i) Empirically: patent statistics; meta-empirically: new standards, metrics and classification tools

(ii)Jurisprudentially: what forms of innovation, ‘skill in the art’, are recognized and preferred by the patent system? What cultural assumptions are exposed within ostensibly ‘technical’ standards?

(iii)The practice of trade negotiations: TK for tactical leverage and as a strategic interest;

(iv)Development policy: TK systems as a foundation of sustainable, culturally appropriate development strategies.

Positive rights in TK

• Work towards a binding international treaty on protection of TK

• Globalizing recognition of what is inherently local

• Calls for indigenous customary law to serve as the legal foundation of international protection of TK – The legitimacy of local norms put forward as

the foundation of a global regime– Again, thinking locally, acting globally

TK/GR disclosure in patent system

• setting aside for now the debate about the virtues, scope and impact of proposals…

• … such measures potentially recalibrate:– the equitable foundations of the grant of a

patent– the public policy function of the patent system– the nature of the deal between patentee and

the public– the terms of trade in knowledge resources

TK/GR disclosure in patent system

• The local context and local concerns in one jurisdiction should determine legitimacy of outcomes in another– Patent opposition not from a commercial rival

but local communities seeking to preserve cultural identity

• The patent system called on to monitor or enforce equitable outcomes under global environmental law (CBD)

‘IP and trade and … ’

• Assertion of TK interests in a trade context also invokes questions of cultural identity and collective human rights

• … recognized in the UN Declaration on the Rights of Indigenous Peoples

UN Declaration on the Rights of Indigenous Peoples

Article 31: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

‘IP and trade and...’• IP and Trade law paradigm broadens to take

account of ‘trade and’ cultural, environmental, human rights and political issues – TK epitomizes this trend

• Assertion of tactical, strategic and cultural political interests related to TK highlights the indivisibility of ‘moral’ and ‘economic’ rights: – consider patent opposition proceedings in foreign

jurisdictions: an exercise in the preservation of cultural identity as the defence of commercial or economic interests.

IP and human rights

• Right to health

• Right to food

• Right to benefit from scientific progress

• Rights of indigenous peoples

• Conceptual/political challenge for coherence and legitimacy

• But also a practical, utilitarian demand

• A guide to using existing policy space

parting questions• What factors determine choice of forum?

– Apart from sheer expediency/pragmatism?

• What deference to the legitimacy and autonomy of local authority

Linking trade and IP law:- a positive conception of ‘legitimacy’ in trade

- with ethical roots common to the conception of fair competition (Paris 10bis)

- But is legitimacy defined and policed through formal international structures?

- Or do they only provide a framework, a conduit, for the dissemination and recognition of localized judgments as to legitimacy. (biopiracy vs. GIs)

Are worlds colliding?• Or are regimes remixing?

– A read/write regime?– ‘content consumers’ (those on the receiving end of

the TRIPS normsetting initiative) evolve into producers of remixed content:

• through domestic interpretation and application of norms (where the promise of TRIPS art 7 is delivered)

• through adapted and extended norms (disclosure, misappropriation remedies for TK, non-economic notions of ‘legitimacy’)

• through new norms (or norms newly recognized)• through the trans-jurisdiction reach of the normative

systems embedded in certification marks and GIs

Where we are …

An emerging multifaceted multistakeholder galaxy of jurisprudence– Conventional IP law and administration– Trade law in WTO and bilateral/regional context– Broader norms of public international law– Safeguards of national policy space/flexibility– Distributed NGO/local community normsetting

(GIs, certification marks)What might guide us?• a core gravitational idea: ‘legitimacy’assessed

from a broader normative perspective

• What's it all for?

• Recall the roots of TRIPS: an orderly, transparent and predictable dispute settlement remains a global public good – legal stability and clarity create a secure space for domestic policy flexibility

AND

• practice of WTO dispute settlement has reinforced a presumption of harmony and coherence in legal texts.

• Obligation to find coherence and mutual compatibility, rather than a presumption of fundamental normative conflict

SHOULD

• The broader normative context provides positive guidance on how to use policy space – what to flex, where, and for what purpose

• Ultimately, the delivery of tangible public goods – food, health, clean technology– Is the policy goal of a balanced IP system– Is the most convincing form of legitimacy– And the pivot of coherence with other

normative claims

• Jamais il ne s'est remué autant d'idées qu'en ce moment

• Agénor Bardoux, ministre d’instruction publique, des cultes et des beaux-arts,

• Congres internationale de la propriété artistique, Paris, 1878