What are we supposed to think when the man primarily responsible for hammering together the global economy's current intellectual property regime suddenly says his pride and joy has been a big mistake? According to Ian Brown, an attendee at a conference last month in Brussells, Belgium, on the Politics and Ideology of Intellectual Property, Bruce Lehman, who served as President Clinton's commissioner of patents and trademarks for six years, said at the conference that he now thinks that the Agreement on Trade-Related Aspects of Intellectual Property Rights [TRIPs] is a failure.
Did he see the light? Has he joined the ranks of the developing nations that regularly lambaste the TRIPs agreement as a fundamentally unfair handout to multinational corporations that was shoved down their throats as part of the creation of the World Trade Organization? Is he ready to admit that industrial-strength intellectual property protections may not be appropriate for poor nations that are struggling to catch up to the rich? Or is he conceding that in crucial areas like public health, the TRIPs agreement gives too much power to the pharmaceutical industry at the expense of sick people in poverty-stricken nations?
Not bloody likely. After serving, as he is wont to describe himself, as the United States government's "point person" in international negotiations on intellectual property rights, Lehman went on to found the International Intellectual Property Institute, an industrial lobbying group. He has been nothing if not consistent: The developing world needs to respect intellectual property rights more, not less.
So what's his beef? According to Brown, Lehman, who once called the TRIPs agreement one of the signal "victories" for the U.S. in international trade negotations, now thinks it's a failure because, in Brown's words, "the WTO agreement in which it is included opened U.S. markets to overseas manufactured goods and destroyed the U.S. manufacturing industry. He feels that the U.S. has kept its part of the TRIPs bargain, but that with 90 percent piracy in China, higher-end developing nations have not. In retrospect, he feels the U.S. should instead have introduced labor and environmental standards into the WTO agreement so that jobs would not be lost in the U.S. manufacturing sector to countries with few environmental standards and weak unions."
Let's set aside the question of whether the manufacturing industry in the United States has really been destroyed (last I checked, the U.S. was still one of the world's great manufacturing powerhouses). And we'll concede that it's nice to hear that now Lehman is suddenly a supporter of international labor and environmental standards. But one can excuse developing nations for seeing affairs in a slightly different light. As part of the horse-trading of the Uruguay round that led to the creation of the WTO, writes Michigan State law professor Peter Yu, a researcher who has studied TRIPs extensively, the quid pro quo of TRIPs was that in exchange for receiving stronger protection for intellectual property rights, developed nations were supposed to substantially lower tariffs on textiles and agriculture. But while the developing nations were required to, as Yu notes, "phase in product patents for pharmaceuticals on the first day" of the transitional period, developed nations were given as much as ten years to get rid of their quotas. And to this day, the United States and the European Union still subsidize their agricultural sectors to the tune of many billions of dollars annually.
Seething anger at the perceived imbalances built into the WTO, partially as a result of TRIPs, is one major reason why progress in subsequent rounds of trade negotiations has been minimal. TRIPs hasn't worked for large portions of the developing world, and according to Lehman, it isn't working for the U.S. either. Finally, we have a consensus!