The Penguin's Paradox: The Political Economy of International Intellectual Property and the Paradox of Open Intellectual Property Models

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I. INTRODUCTION

A serious game is underway in which the world's intellectual capital is at stake. On one side of the game, advocates of "open" intellectual property rights (IPR) models suggest that opening the intellectual commons will spur development and promote a more equitable distribution of the world's resources. Developing countries, which lack strong domestic IPR-producing industries, often favor more open IPR systems that allow them to adopt, at minimal cost, technologies and IPR-rich products that are produced in the developed world.

On the other side, many IPR-rich industries and market economy advocates view policy initiatives in favor of open IPR models with suspicion, if not hostility. For these players in the global IPR game, strong IPRs are the foundation of an economy characterized by growth, prosperity and innovation, and represent the best path forward for both the developed and developing world. Developed countries, such as the United States and the European Union, tend to favor relatively "closed" IPR systems, which reflect the interests of domestic IPR-rich industries, such as the pharmaceutical, biotechnology, and entertainment industries.

For certain goods, such as medicines and basic scientific research, this disparity becomes more than an arcane question of trade economics. It is, rather, a question basic to human health and dignity. From the "digital divide," to biotechnology, to medical research, open source and open access have become key components in the strategy to boost the fortunes of developing countries) For many open IPR or "access to knowledge" advocates, open models are seen as the means to break the developed world's hegemony over essential information and technology. In contrast, many closed IPR proponents view open models as, at best, potentially useful adjuncts to a strong IPR system in niche markets, which can be voluntarily developed but should not be imposed or supported by government intervention.

The game plays out in the dusty and remote arena of international IPR treaty negotiations. The history of the international IPR treaty system suggests that it has trended towards a strong requirement of minimum IPR standards, largely in response to the concerns of IPR-rich industries in developed countries. (2) Advocates of open IPR models have recently focused on public policy strategies concerning open source production and open access publishing in an effort to mitigate this trend. (3)

Open source production seems like a politically attractive option to many open IPR advocates because it could potentially achieve greater openness without eliminating the perceived benefits of IPRs. These advocates seek to portray open source as an alternative means of production that is both economically efficient and more socially equitable than the existing proprietary framework. Their policy proposals focus on incremental changes that would facilitate open source production in ways that are palatable, or at least not nauseating, to strong IPR advocates. (4) Similarly, policy proposals concerning open access publishing have been tied to public funding of scientific research, as a secondary or alternative source of access to research papers published by traditional publishers. (5) Open access advocates argue that the public has a right to free access to research findings resulting from the use of tax dollars, even while commercial publishers retain the right to control copyrights in the articles they publish. (6)

These seemingly moderate efforts to reform IPR rules, however, have met with only marginal success, despite strong support from other stakeholders such as the scientific research community. (7) What interests are at play in this policy game that seem so consistently to tip the balance towards a strong IPR solution? How does a careful study of these competing interests inform a constructive approach to international IPR policy? Game theoretic political economy models help answer these questions. …