How vulnerable are intellectual-property provisions in trade agreements?

Original Research Week continues here in the Orangespace. I’ve been thinking a lot lately about intellectual-property provisions in trade agreements. (As have a number of other people.) We’ve gotten to a point in the global economy where it almost doesn’t make sense to keep referring to things like the Canada-EU trade agreements as free-trade agreements (Journalists: Please stop doing this). Lowering trade barriers is an increasingly minor part of these agreements, given the fact that global tariff levels are at historic lows.

As my old professor Michael Hart – who’s a bit, shall we say, zealous on the issue of free-trade – taught me back in his trade policy class, intellectual property rules in trade agreements actually restrict trade. Free trade and IP are not, in other words, the best ideological (ideational?) fit. Peter Drahos and John Braithwaite, and Susan Sell, among others, have shown that this trade-IP linkage was politically constructed, as IP industry representatives successfully argued to U.S. government officials that stronger global IP protection would help stave off declining U.S. global economic dominance. Thus we have the Office of the U.S. Trade Representative’s concern about pursuing ever-stronger global IP protection.

All this got me to thinking about the conditions that would lead to the un-making of this political bargain, especially in light of rising public interest in copyright issues. I’ve written a paper about it, which I’m presenting tomorrow to the Canadian Political Science Association. In it, I argue that the involvement of the public and Internet-related firms, with their emphasis on the importance of diffusing, not protecting, information, has the potential to upset this nearly four decade-old trade-strong IP linkage. Quoth the abstract:

Though understudied in international political economy, copyright and intellectual property (IP) have become increasingly central to the appropriation of value in global production chains; stronger IP is the bedrock of U.S. attempts to maintain global economic dominance. As digital technologies have brought individuals and telecommunications companies into direct contact with copyright laws, copyright has been politicized, capable of sparking massive worldwide protests. While traditional copyright interests continue to seek ever-stronger copyright laws and international treaties in the name of stronger “property rights,” they are increasingly being countered by those promoting “user rights.” One of the most dramatic of these protests, the January 2012 “Internet blackout” in protest of two copyright bills, occurred in the United States, ironically the foremost state proponent of stronger copyright.

Copyright’s politicization offers a useful lens through which to consider the wider issue of global norm diffusion. Its politicization threatens not only the direction of future copyright laws and treaties, but also the structure of the global political economy. This paper considers the implications of copyright’s politicization by focusing on the most recent IP treaty, the Trans-Pacific Partnership (TPP). Using historical institutionalism and analyzing the effects of copyright politicization in three key TPP countries, Canada, Mexico and the United States, it argues that the United States’ strong-copyright position will become increasingly untenable, as copyright politicization becomes increasingly ubiquitous. However, regulatory capture of key copyright and trade institutions by the copyright industries means that the trend toward stronger copyright may not reverse immediately.

In short, the dissemination side is winning the framing and public-opinion battles, while elites are becoming increasingly conflicted about whether copyright’s protection or dissemination roles should dominate.

This doesn’t mean that the U.S. government will wake up tomorrow and abandon their pro-stronger-IP position in the Trans Pacific Partnership talks (the paper’s ostensible focus). Institutions and the people in them change only gradually. But it does mean that the foundations of U.S. trade-IP policy are becoming increasingly vulnerable.

Anyway. This paper is a work in progress, so I’m sure there are several things that I’m missing or could explain better. I’m looking forward to getting feedback from the panel discussant and the audience tomorrow. And if anyone else would like to weigh in, please feel free to do so in the comments or via email at bhaggart at brocku dot ca.

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