The Yale Law Journal


IP Essentialism and the Authority of the Firm

01 Jun 2008

The goal of translating the diffuse gains from domestic intellectual property (IP) protection in the global North into an international setting characterized by vast disparities in national income levels, diverse cultural and historical contexts, and distinct legal institutions has long caused pathological behavior in global IP politics. The A2K movement reflects this pathology in new ways. The paradox of the movement, well captured in Amy Kapczynski’s article, is that it depends so integrally on the core assumptions that sustain the legitimacy of the international IP system, the most essential of which is that technological innovation is a principal cause of national economic growth. Yet fostering endogenous economic growth has not occupied a central place in A2K strategies. If altering the terms and text of the debate over the global conditions of IP protection is the organizational hook to the A2K mobilization, it is striking that the fundamental theme of the debate—inducing economic growth—is not central to the movement’s internal self-legitimation. In this brief Response, I put forward a few insights highlighting the discursive nature of the movement, the entrenchment of Coase’s firm in rationalizations of the global necessity for IP protection, and the movement’s own reliance on IP and market rules to maintain its position of influence in multiple international fora.

The Making of a Movement

The A2K mobilization is not organized as resistance to standard justifications for IP (in fact, these justifications in many ways are the very fodder of the movement), but rather as an insistence on the normative space within which expectations of IP owners in the global marketplace can be redesigned to account for the provision of global public goods.Indeed, the evolution, operation, and success of A2K as a movement thus far have all been in this global space. This is not to say that some elements of the A2K platform do not seek corollary domestic benefits from gains in the multilateral arena and vice versa. In fact, as I argue further below, the movement is fueled both in its opposition and in its “idea-positions” almost entirely by events in the United States and the European Union. But the native essentialism of IP regulation has far more powerful moral and economic logic in a transnational legal order in which the central challenges revolve around addressing the consequences of the political and economic impoverishment in which the vast majority of the world’s population lives. One dramatic example came during the access to medicines phase of the A2K movement, when members of the movement shared film clips of HIV/AIDS-infected adults and children combined with statistics demonstrating how many lives would be saved if drugs were affordable. This effort compelled a response from countries in positions of power, especially when the solutions appeared to be workable and normatively unassailable. Ultimately the Doha Declaration was an explicit political act notated as an important success for the A2K movement, despite the fact that, as a matter of law, the limitations on patent rights recognized therein were entirely consistent with the provisions of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement).

The battle over access to pharmaceuticals was a classic example of how the institutional failures of countries in the South could be overcome on the very terms set by the North. The power of shaming to coerce compliance with global norms by powerful actors is particularly effective when those actors fear the costs of public outrage at their ostensible moral indifference to the plight of the most vulnerable. But the moral force of mobilization under the A2K rubric cannot always count on the grim realities of poverty-stricken populations or the forced largesse of IP rights owners to transform the balance of power in global IP lawmaking. The recalcitrance exhibited by developed countries at the recently concluded meeting of the WIPO Standing Committee on Copyright and Related Rights (SCCR) is a case in point. In response to a proposal by Chile and Brazil to examine norms for limitations and exceptions to copyright, Group B countries (developed country members of WIPO) unanimously opposed such normative action, taking a “hard line” against proposals relating to flexibilities in international intellectual property law. While the item remains on the SCCR agenda, it is clear that this A2K item suffers from the absence of an emotive appeal often necessary to provide political traction to A2K mobilization.

Fixed Frames: A Movement Around IP

Professor Kapczynski’s article illustrates that the A2K platform does not necessarily seek to alter the dominance of IP in the development discourse. At its most radical, the movement encompasses efforts and strategies that, while ostensibly associated with classic IP-related concerns, also are attempts to expand the innovation paradigm that has dominated the construction of the terms on which developing countries were invited to participate in the global political, legal, and economic systems. But despite the relatively new subject-matter context in which the debate has unfolded, A2K mobilization is reminiscent of the conflict that has characterized the postcolonial public-law order for decades in which new forms of legal entitlements, including IP, were extended on global platforms built on the central moral tenet of the equality of all human societies. It is hardly a surprise, then, that A2K’s engagement with the law brought the movement into alignment with fundamental assumptions regarding the necessity of IP law, not only for the movement’s internal coherence but indeed for its very survival. At its core, this fundamental alignment explains why the A2K movement has succeeded in ways in which other coalitions, who also opposed the global IP agenda at various points in its historical trajectory, did not.

If IP is itself a master frame mediating the claims of local and global actors regarding the impact of IP on needs of dispersed peoples across the Southern hemisphere, what is it that supports the A2K movement’s internal IP logic while it appears to oppose the fundamental rationalizations that support IP rights? In three brief points, I suggest that the various ways the conflict between IP and access to knowledge has been constructed actually understate the nature of the coordination gamesthat keep the A2K mobilization dynamic at the global level.

First, the movement operates mainly in inter-governmental institutional fora where its agenda can appear subversive to the orthodoxy of IP, in part due to the fact that A2K actors are not official participants in IP negotiations. The “insider-outsider” status of many actors may limit their formal power in many ways, but it also allows them to disengage (itself a form of power and influence) from addressing topics that arise which are part of the global IP framework, yet may not resonate with the A2K agenda. Strategic engagement is thus a way to legitimize the movement and reinforce its influence over discrete IP issues.

Second, the A2K movement’s approach to IP internalizes the same tensions inherent in the IP system. It is not so much a countermovement but a counterpart—what could be described as an integration effort that seeks to legitimize the role of IP in the supply of public goods by ensuring that those goods are meaningfully available to consumers worldwide. IP scholars, even those of Continental stripe, all recognize that proprietary rights are a means to an end. Accordingly, the strength of the A2K platform in its alignment with IP rights owners derives power by being located in a core normative claim of the IP system, namely that the system exists to enhance public welfare. In its purposive mode, then, the A2K movement is a necessary corollary to the expansion of global IP rights.

Third, many consider that the strength of the A2K platform is abetted by the longstanding weakness of coalition building and collective action among developing and least-developed countries (DCs and LDCs) that in theory have the most to gain from the A2K movement. As a framing mechanism, however, the North/South divide is not a source of legitimacy for the movement, but rather an opportunity to insert agenda items onto the working platforms of inter-governmental organizations where non-governmental organizations are precluded from membership. Certainly, any such work is formally done in collaboration with governments; nonetheless, the expertise of the A2K movement and its relative imperviousness to centralized political or economic pressures makes it possible for the movement to gain and exercise power vicariously through DCs and LDCs (although it also does so directly in some cases), while widely diffusing potential risks or destabilizing costs of any one actor’s action or activity.

The Authority of the Firm

What is salient about Professor Kapczynski’s account of the A2K movement—its origins, structure, purposes, and successes—is how the North is central to the capacity of the movement to define itself and become integrated in the international arena far more than in the national context. Just as in other areas of the global system, IP rights do not effectuate their stated policy goals in isolation from political, economic, and cultural contexts. The A2K platform differs materially from the IP and development work of the 1970s and 80s in that its immediate and direct focus is not economic growth in DCs and LDCs, but rather transformation of legal expectations of firms in developed countries that seek maximum rent appropriation from global markets in ways that limit the diffusion of technological benefits in developing and least developed countries.

The authority of the firm as a generator of technology—technology which the A2K platform seeks to regulate and disseminate in ways ostensibly unfamiliar to the classic IP paradigm—is premised not only on its innovation but also its organizational role in the economic culture of industrialized economies. For example, historians of the patent system have demonstrated the importance of the institutional design of the patent office, the role of property and contract rights, and the rise of a class of patent agents to mediate between inventors and firms as key elements of patent law’s success in the US. IP industries, as agents of innovation central to the production and dissemination of knowledge goods, thus seem justified when they echo concerns about fairness and justice (similar to those that mark A2K activities) and effectively frame the central inquiry as whether it is right or fair to strip property rights from one individual and give them to another.

This particular framing has been effective in undermining the force of human rights theory, for example, as a countervailing legal regime to excessive IP rights. Instead, in the presumed neutrality of a competitive marketplace, firms benefit from representations of the global normative space as an inter-institutional doctrinal vacuum where no one’s “right” is superior. This view effectively transforms A2K’s dialectical engagement with global IP rules into a mediating account of the legitimacy of the initial grant of rights, urging caution towards norms that might undermine the scope of the grant.

Concluding Observations

Despite the space the A2K movement has forcibly wrenched from the global IP agenda to experiment and establish limits on the exercise of IP rights in global markets, the core task of facilitating national growth in a way that makes it possible to insulate domestic policy choices from powerful global institutions remains an enduring challenge for international IP policymaking. The critical question is not simply whether IP is balanced or mediated in ways that facilitate access to knowledge generated in the North, but whether the values embedded and reflected in the IP system can give way to cultural norms that differ in form and operation from those that have long characterized global IP lawmaking. The mutations of the global politics of IP for the last half-century, starting from the law and development era to the A2K movement suggest, yet again, that the time for this has not yet come.

Ruth L. Okediji is William L. Prosser Professor of Law, University of Minnesota Law School.

Preferred Citation: Ruth L. Okediji, IP Essentialism and the Authority of the Firm, 117 Yale L.J. Pocket Part 274 (2008),