Globalisation and Intellectual Property - Essay Example

Globalisation and Intellectual Property Law Subject Name Institution Introduction There has been increased globalisation with such intensity that most of the world economies are interconnected. The most world economies have been working together through international trade so as to get the products they do not produce and to trade of their surplus. Globalisation has raised a lot of debate about how intellectual property rights should be treated at the international arena. This is done so as to ensure that the countries and companies involved do not engage in business unfairly to push other companies and countries out of the market1. Globalisation has led to introduction of laws to govern how property owned by different companies and countries is well protected from being copied by others. Globalisation and intellectual property right are intertwined in the international arena because trade is what connects the world economies because it should be checked and monitored. Globalisation has helped in creation of new potential properties because innovators are sure they will be protected. The creation of new forms of properties has produced challenges to what has been long standings models which have been used to protect ownership of intellectual property. There are those who take part in globalisation believe that the already existing ways of regulation should be used to protect even the emerging properties2. The existing regulations include copyright, patents and industrial designs which will help protect the rights of the owners. There also those people who argue that regulating property rights will hinder competition in the market. The reason behind this is that strict regulation of property rights would affect trade in the global context. These strict laws could hinder delivery of important products such as medical drugs to patients. Methods of IPR’s In the past there has been debate about intellectual property which has been heightened by tension between proprietary and collective way of intellectual property rights. There are those who advocate for proprietary method of intellectual property rights and they argue individual ownership of property rights encourages people to invent ideas because they are sure they will be protected and gain from their invention3. The advocates of collective way of rights ownership believe that all ideas social and they have to be shared by everyone in the society where they were invented. According to collective proponents inventors owe the responsibility to the society and therefore, they should share their ideas with the whole society. They argue that this is a way of protecting the overuse of ideas and inventions. In the modern society intellectual property laws started to be put in place in the 19th century when countries with industrialised ideas introduced patents and copyright laws which were directed to achieving economic growth as well as protecting the countries autonomy in national culture4. Trade globalisation The industrialised nations saw the need to engage into international trade and this led to creation of international intellectual property agreements that would help them in monitoring how the international property rights are applied. These agreements were the Paris Convention of 1883 which was aimed protecting the Industrial Property and the Berne Convection of 1886 which was aimed protecting the artistic and literary works. In the 20th century new types of property were introduced which included the radio, television as well as genetically modified products5. These were absorbed by the already existing agreements which were later strengthened by the formation of World Intellectual Property Organisation (WIPO) in 1967. WIPO was aimed at administering all the intellectual property treaties that govern international trade and offer direction on legal and philosophy matters that affect global intellectual property law. These earlier agreements also received a boost in 1994 with the introduction of the World Trade Organisation’s agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) this was to work hand in hand with any other intellectual property agreements existing or introduced at national or international arenas. WIPO has received a lot of opposition because there have been debates on the merits of TRIPS6. WIPO created a Patent Cooperation Treaty (PCT) in 1970 and is seen as the most important development in the context of intellectual property rights. The reason behind this is that PCT allows for patent filing around the world which leads to global patents which are key to realisation of economic growth and modernisation. The treaty has facilitated trade and led to innovation in many fields. However, it has polarised trade and growth in some areas because of the harmonisation agreements which prevents countries especially the developing ones in using their superiority derived from their numbers in the global arena. This means that developing nations can only depend on developed countries for technical ideas and capital. The international intellectual property regulations have also raised a lot of debate because there is threat of bio-piracy which is seen as exploitation of the resources of the developing nations by the developed countries. The globalisation of the intellectual property rights has also led to a challenge for emerging genetic property because there have been questions whether the global organisations can be able to protect the autonomy of such issues. Effects of Globalisation The intellectual property rights has become a global phenomenal because of so many trade related issues arising from the trade agreements. The TRIPS lays down the minimum standards that should be followed in engaging in international trade. These are to ensure that IPR are well protected as well WTO members and ensure that there is a global regime that will offer this protection. The benefits of TRIPS are limited in poor countries because infrastructure levels are so low and this hinders the countries capacity to invest in research and development (R & D) and social protection because the cost of innovation and invention is very high. This has made it hard to solve the problems that arise in IPR protection. However, there has been great progress and cooperation from most world economies and this has led to economic growth and development on the global arena. The benefits realised in the global arena has made it possible for the world organisations to increase their investment in ensuring there is increased protection for those who invent and invent ideas, this works as an incentive7. The globalisation has greatly affected intellectual property rights because it has turned them to be incentives for innovation. Globalisation ensures that there is transfer of technology and knowledge from high technology economies, knowledge and inventions rich countries to those countries with fewer infrastructures that would enable them to come up with inventions. It has also ensured that there is an established mechanism of solving disputes that arise and there are even penalties on those who violate IPR’s8. This means that with globalisation it is easy to achieve the IPR’s because there is a lot of cooperation. With globalisation there is need to look at each countries domestic policies so as to avoid affecting a countries domestic structure with the introduction of the IPR’s this will ensure that there is growth domestically which is as a result of TRIPS agreements which will hurt a countries economy. In globalisation there is need to support and invest in domestic policies which will encourage innovation and invention. Therefore, any TRIPS and IPR’s should be aimed at supporting the domestic policies9. The IPR has become a key issue in the global context and has involved a lot of global politics. Intellectual property rights have been seen as the new way of globalising property which was seen as a way of substituting the existing ways of trade protection such as tariffs, industrial subsidies. Intellectual property laws as seen to raise a lot of issues ranging from economic, social, political, and moral issues in the contemporary society. Globalisation has been very important because of production of capital and its massive mobility. There is also growth of digital technology, information as well as service based economies. IPR’s were also used due to dominance of the doctrine of free market and also the competition between the domestic economies and regional blocs. There is an increasing interconnectedness and interdependence in the world economies through the environmental ecosystems. Stages of IPR’s There have been stages which have been identified as the ones taken by the revolution of the intellectual property rights. The first stage is the domestic or territorial era under which the country was not involved with any international regime. In this stage the country makes and follows its own intellectual property legislation without taking into consideration what the other economies are doing. In this stage the country is individualistic and ensures that its industries are well protected from any external influence. The laws ensure that the countries innovations and inventions only benefit the country without spill over to other countries. The countries’ economies are independent to each other because they do not rely on each other for their production of essential products. The country is not obliged to follow any international laws that will force placing of the country knowledge and inventions on the global context. The country’s trade policies only affect the domestic structure of the economy without affecting the international trade. In this stage there is no interconnectedness of the world economies. The second stage is where the international regime was ushered in with the introduction of Paris and Berne Convections although they were also territory based and they protected the rights of inventors through the use of the above treaties10. The third stage of the intellectual property rights is where globalisation took its shape. The laws which were introduced at this stage were to check how economies conducted their trade at the international arena. At this stage the laws passed were regulatory and worked to ensure that the intellectual property rights were protected from being violated. In this stage the economies were interconnected and worked together so as to achieve their goal and objectives from the international trade. At this stage ways to govern international trade had to be put in place so as to ensure that there is a cordial working relationship among the countries involve in the international trade11. This can be highly be attributed to U.S led pressure which was aimed at raising trade into a global context. In this stage the world economies established a World Trade Organisation (WTO) which was charged with the roles and responsibility of making laws and governing how the economies engage in trade. TRIPS are also a way of illustrating how important the third stage was in analysing the globalisation of the intellectual property rights12. Globalisation of IPR’s With the establishment of WTO in 1995, the world economies were properly globalised and the body was to oversee any trade that was taking place among the countries. WTO was also charged with the role of solving any disputes that arose during trade. This led to setting up of TRIPS agreement which were setting standards to be followed during trade. They also set the scope and when and how the IPR’s should be applied. Globalisation has affected the intellectual property rights in that Corporations just like NGOs may be local, national or multinational though they are driven by the need to generate profits. However the establishment of a corporation provides many opportunities for the society which help improve lives13. They have provided employment opportunities for locals and influenced governments to improve the living standards of their people through improved infrastructure and social amenities. However corporations do have the ability to use their power in improving global economic conditions and improve living conditions and they do this under the umbrella of Corporate Social Responsibility (CSR) programs ensuring that it creates value both for the shareholders and the society. This has been made any by globalisation through the set laws to ensure that even countries that engage in the international trade have a way of giving back to the community14. Dispute resolution The international trade has provided a way of solving disputes for example, there is a need to refer to a similar case of 1993 that involved Indonesia as the respondent and European Communities, United States and Japan as complainants. The issue was that Indonesia had adopted two programmes one in 1993 and another in 1996. There was a 1993 programme that passed that there will be tax reduction or exemption on all automotive products and all the related parts. Therefore, Japan can have a legal on Australia because it is acting against the World Trade Organisation guidelines and rules. Also, there is a need to refer to the 1996 National car programme that passed that there should luxury tax exemptions and import duty exemption to those vehicles that qualify to be of the luxury category15. The Panel’s findings were that according to the TRIMs agreement Article 2.1 which deals with local content requirement the panel verdict was that the 1993 programme violated this article16. The behind this verdict is because the programme can be defined as investment related to trade and; therefore, such a measure is discriminatory. The second issue is that this programme is inconsistent and not in line with national treatment obligation17. Another panel finding in this case is that the panel found that Indonesia car programmes that would see imported vehicle taxed highly than the domestic ones. This violates GATT Article III and 2 which is the national treatment because this car programme stated that no imported would directly compete with domestic products. This programme was discriminatory and against the WTO guidelines. This programme was aimed at promoting domestic industry18. The panel also found that these programmes to be in violation of the GATT Article I:1, which is the most favoured nation treatment (MFN) because the programme accorded advantages in terms of duty and tax exemptions to imports from Korea, which made products from other countries uncompetitive due to different prices with those from competing countries. According to the WTO guidelines no member country should discriminate another member country in terms of taxation and duty19. On solving the second legal issue, there is a need to use World Trade Organisation agreements such as SPS Agreement this is WTO Agreement on the Application of Sanitary and Phytosanitary Measures. Another measure is TBT Agreement, which is WTO Agreement on TBT20. These agreements ensure that no country can discriminate products from another country in terms of their conditions if they meet the WTO set standards. A country does not have a right to discriminate products from another country as long as they fall with the two set agreements21. Some schools of thought argue that corporations through their CSR initiatives fund programs that aim at promoting the environment and social well-being, but in most cases they use this platform to aggressively market themselves and boost the reputation for their brands. They also believe that corporations have contradictory virtues and vices; therefore the good they wish to do to promote social and environmental welfare may be ruined by their vices, and as such their legitimacy is questioned. This can only be checked through TRIPS agreement and IP laws22. Effects of IPR’s on globalisation However over the years, globalisation has grown to promote sustainable development within the society, such that countries involved can continue making profits but they have to fulfil a moral responsibility to the society in which they operate. Many transnational corporations start from within their setting by promoting their employees socially, like in scenarios where they provide resources to educate their employee’s children. The companies and countries also provide knowledge, information and ideas they invent to the availability of the competitors23. Globalization and intellectual property rights have led to introduction carbon credits so as to minimize pollution. Carbon credits are permits that allow a company or a country to emit a tone of carbon dioxide in a given duration. The permits are given to countries or companies that emit carbon below the set amount or quota. WTO can use the carbon credits as a motivation to continue with the reduction of carbon emissions24. The company can get awards for not exceeding it set quota of emission, and if the company aims to exceed it should purchase a credit from the environmental body as a license to emit the excess gas. WTO has introduced big green initiative which is aimed at reducing energy usage in the world. The move will also reduce the space used in data centers25. There are plans to reduce the use of polythene bags and any other plastic materials so as to improve the environment and reduce gas emissions. Microsoft is introducing the use of recyclable materials in making their products so as to reduce carbon emissions. WTO is also planning to introduce a carbon fee where business groups become responsible for what they emit into the atmosphere26. Bibliography Drahos & R. Mayne (Ed.). Global intellectual property rights: Knowledge, access and development. (p. 161-182.). Palgrave Macmillan. Thurow, L. C. (1997). A New system of intellectual property rights. Business Review: Harvard , 75 (3), 94-103. Andersen, B. (2004). Intellectual Property Right is the Answer: Economics of Innovation and New Technology, 13 (5), pp. 417–442. Archibugi, D. and Iammarino, S. (2002). The Globalization of Technological Innovation: Definition and Evidence’, Review of International Political Economy, 9 (1), pp. 98–122. Archibugi, D. and Pietrobelli, C. (2003). The Globalisation of Technology and its Implications for Developing Countries. Technological Forecasting and Social Change, 70 (9), pp. 861–884. Arrow, K. (1962) ‘Economic Welfare and the Allocation of Resources for Invention. Princeton, NJ: Princeton University Press, pp. 165–180. Barton, J. H. (2000). ‘Reforming the Patent System. 287(5460), pp. 1933–1934. Archibugi and J. Michie (eds). Technology, Globalisation and Economic Performance. Cambridge: Cambridge University Press, pp. 83–137. Boyle, J. (2003) ‘The Second Enclosures Movement and the Construction of the Public Domain’, Law and Contemporary Problems, 66(1⁄2), pp. 33–74. Branstetter, L. G., Fishman, R. and Foley, C. F. (2004) ‘Do Stronger Intellectual Property Rights Increase International Technology Transfer? Quarterly Journal of Economics,121 (1), pp. 321–349. Chen, Y. and Puttitanum, T. (2005). ‘Intellectual Property Rights and Innovation in Developing Countries. Journal of Development Economics, 78 (2), pp. 474–493. Cohen, W. M. and Levinthal, D. A. (1989). Economic Journal, 99 (397), pp. 569–596. Cohen, W. M. and Levinthal, D. A. (1990) ‘Absorptive Capacity: A New Perspective on Learning and Innovation’,Administrative Science Quarterly, 35, pp. 128–152. Drahos, P. (1995). The Story of TRIPS and the GATT’,Prometheus, 11 (1), pp. 6–19. Macmillan, F. (2006). ‘Public Interest and the Public Domain in an Era of Corporate Dominance. Cheltenham: Edward Elgar, pp. 46–69. Mansfield, E. (1986). ‘Patents and Innovation: An Empirical Study’, Management Science, 32 (2), pp. 173–181. Read More