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The Expansion and Restructuring of Intellectual Property and Its Implications for the Developing World

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Abstract

In this paper we begin with a reference to the work of Hernando de Soto The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, and his characterization of the Western institution of formal property . We note the linkages that he sees between the institution and successful capitalist enterprise. Therefore, given the appropriateness of his analysis, it would appear to be worthwhile for developing and less developed countries to adjust their systems of ownership to conform more closely to the Western system of formal property. However, we go on to point out that property relationships within the Western system have become subject to redefinition through the expansion of Intellectual Property (IP) rights in ways that ultimately work to the disadvantage of the developing and less developed countries. We point out that this restructuring has been given global application through the implementation of the TRIPS agreement by the WTO. In the final section of the paper I suggest ways in which IP rights and relevant institutions can be reformed in order to avoid the disadvantages to the developing and less developed countries.

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Notes

  1. See also Bethel (1998).

  2. Some, notably James Tully (1996) take an opposing view and argues that indigenous societies need to maintain their traditional institutions if they are to maintain their cultural identity. See also David Lea (2002).

  3. We proceed to argue that income rights are being restructured in a manner that works to the disadvantage of the non-Western world. However, even if this were not occurring it is not actually the case that Western interests allow capital to flow unimpeded through global markets. The rejection of Dubai Ports takeover of six US port facilities by US political interests in 2006 indicates that on occasion the rules of the game will be suspended, nor, post the Iraq invasion, can one discount the possibility that on occasion economic agreements will be forced through military intervention.

  4. See for example, Locke (1967) and the more contemporary Nozick (1974) and Waldron (1988) among others.

  5. From The Chronicle of Higher Education: The Chronicle Review (February 17, 2006, p. B20).

  6. J.E.M.A.G. Supply, Inc. v. Pioneer Hi-Bred Int’l Inc. 534 U.S. 124 (2001).

  7. The Lockean property right – of mixing labour – was enshrined in the French patent law of 1791, and the UK patent reform campaign of the 1820s used as an argument by J.R. McCulloch "If anything can be called a man’s exclusive property, it is surely that which owes its birth entirely to combinations formed in his own mind, and which, but for his ingenuity, would not have existed" (Ricketson 1994, p. 563). The Lockean argument was accepted in relation to the justification of copyright. This was seen as a right of return on the labour (Ricketson 1994, p. 72–73). The labour justification was roundly criticised at the time of the patent reform campaign (Ricketson 1994, p. 563).

  8. The issue of consent is indeed interesting. Even though many developing countries have agreed to the TRIPS agreement that mandates legislation on IP that largely follows US and EU guidelines, there is a strong element of coercion in so far as membership in the WTO is not possible without agreeing to implement the TRIPS guidelines. Initially developing counties that had WTO membership were induced to agree to TRIPS because they were promised increased investment and greater access to Western markets for their agricultural products. Moreover, despite their reservations, the developing countries were also subject to a well organized campaign by the developed countries to push through TRIPS guidelines.

  9. For example, in 2004 Australia developers of open source software expressed their wariness of the free trade agreement (FTA) struck with the US, saying it would lead to the acceptance of American-style patent and intellectual property laws which, in turn, would cripple the local software industry. See Sam Varghese, Melbourne Age, (March 12, 2004), p 41.

  10. On April 5, 2004 Judges in the US state of Nebraska re-activated a class-action lawsuit against Microsoft Corp. The action claims Microsoft over-charged customers for Windows 98 by setting the cost artificially high, and seeks $425 m in damages. E-mail is likely to form the basis of much evidence in the case, including a 1997 communication reportedly sent by Microsoft group vice president Jeff Raikes to billionaire Warren Buffet, seeking his investment in Microsoft. Raikes told Buffet that some observers had likened Windows to a "toll bridge" adding the company is a "90%+ margin business." Buffet did not invest in Microsoft, “US Judges Re-Activate Microsoft Antitrust Case,” ComputerWire, (March 22, 2004).

  11. Steve Ballmer, Microsoft’s CEO, warned Asian governments they could face patent lawsuits for using the Linux operating system instead of its Windows software. Ballmer stated that Linux violates more than 228 patents, but significantly did not provide any details on the alleged violations, which the Linux community disputes (The Gulf Today (November 17, 2004, p. 23).

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  1. Dept of International Studies, American University of Sharjah, Box 26666, Sharjah, United Arab Emirates

    David Lea

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Lea, D. The Expansion and Restructuring of Intellectual Property and Its Implications for the Developing World. Ethic Theory Moral Prac 11, 37–60 (2008). https://doi.org/10.1007/s10677-007-9084-4

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