Since the arrival of the World Trade Organization (WTO) in 1995 a number of side agreements have also been negotiated that seek further rationalization of the emerging global economy. Prominent among these is the agreement on Trade-Related Intellectual Property Rights, or TRIPS. Enforcement of the TRIPS agreement would involve the multilateral trade sanctions mechanism of the WTO. This paper examines justificatory arguments for the defense of intellectual property rights in the international economy. These arguments are based on the "classic" philosophic writings of Locke, Hegel, and Bentham. It is found that these well-known philosophic defenses for exclusive property rights do not hold up well when applied to intellectual property.
Keywords: Intellectual property, TRIPS, WTO, Philosophy, Property rights
With the close of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) and the establishment of the World Trade Organization (WTO) in 1995 several non-tariff, trade-related issues achieved a new or heightened visibility in international economic negotiations. The official position of the United States required the inclusion of so-called Intellectual Property Rights (IPRs) as a topic of GATT negotiation. The view of the US Trade Representative was that respect for Intellectual Property (IP) was a sufficiently contentious issue involving actual and potential violations of patents, copyrights, trademarks, and industry secrets that it required international institutional oversight and, if necessary, trade-related sanctions. (2) These functions were seen as appropriately falling within the purview of the WTO. It is highly likely that in the absence of an agreement on Trade-Related Intellectual Property (TRIPS) the United States would have withdrawn its support for the Uruguay Round of GATT talks and the agreement establishing the WTO would never have been ratified.
Equally notable in recent years has been the increased willingness of groups who have been left out of formal negotiations to assert their own claims and to challenge the outcomes of the official international process. These groups include among others trade unionists, environmental and human rights activists, and animal rights advocates. They have called for modifications of the WTO principles and procedures to take due recognition of the negative fall-out of a global system of production and distribution whose motor force is unconstrained profit maximization. These calls have been met in the mainstream press with a combination of condescending explanations of the benefits of unrestrained trade along with outright derision. (3)
The press critique of civil society's demands have been supported by much academic analysis that argues for the exceptionalism of intellectual property rights within the context of the WTO that does not apply to minimum international environmental or labor standards. Maskus (1999), for example, argues that WTO oversight of intellectual property rights is justified by the fact that IPRs are inextricably linked to the international exchange of goods and services. A weak regime of protection weakens the incentive to export to markets where the threat of imitation is high. Moreover, a generally weak international regime of uniform IPRs may have a discouraging effect on innovation (Aoki and Prusa 1993). Weak IPRs then act as a barrier to exports resulting in reduced welfare.
An understanding of the ideological legitimacy of agreements governing TRIPS involves presuppositions about what we regard as the legitimate reach of the concept of property and property rights in a global economy. In this paper I shall examine some of the classical philosophical theories of property and defenses of private property right. The writers whose ideas will be examined had little to say about intellectual property. …