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Intellectual Property Rights: A Critical History and US IP Imperialism

Over the holidays, I was reading a book, and was asked by some family members what I was reading. My reply was, “probably a book that only 3 people in the world have read.” The book is Intellectual Property Rights: A Critical History, by Christopher May and Susan K. Sell (2005). The authors seem so far to be generally averse to IP and clearly recognize IP is not a natural property right, in any case.

I came across a nice passage on pp. 1-2, ch 1. The authors explain that AIDS medicines are too expensive for many patients, especially poor ones in developing nations, because of the premium price that results from the patent monopoly.

“To deal with this problem, in the 1990s Ghana and Brazil tried to import from Indian manufacturers cheaper generic versions of the AIDS-cocktail’s component drugs. This action reflected a long history of nonprotection for foreign pharmaceutical patents in India, where a large generic manufacturing sector had developed since independence. this competition from generics prompted some multinational pharmaceutical companies to offer discounts on their AIDS drug treatments…

“The use of generic substitutes for patented drugs also spurred legal action on behalf of Merck and others by the United States against Brazil at the World Trade Organization (WTO), however. The US Trade Representative (USTR) argued that the production and use of generics were directly in contravention of international law and that there could be no justification for the appropriation [sic] of US companies’ (intellectual) property. This was theft, and the USTR vigorously protested that it helped no one. Despite being subsequently dropped owing to political pressure, this action reveals much about the overall attitude of the office of the USTR [U.S. Trade Representative]: whatever the human costs, intellectual property rights (IPRs) must be upheld.

“Although it seems obvious that the AIDS crisis in Africa is an exceptional public health emergency, it took considerable effort to negotiate the 2001 Doha Declaration on the TRIPs Agreement and Public Health as well as the subsequent agreement on implementing paragraph 6 …. Although this agreement contains provisions for compulsory licenses in exceptional circumstances [i.e., generics could be manufactured without consent of the patent holder], under pressure from the US government and specifically the USTR, the provision has been largely disregarded since 1995. In protecting the interests of its national companies, the USTR has argued that protecting the IPRs of the large pharmaceutical companies that produce many of the AIDS-related drugs used in treatments around the world is imperative. Thus, for instance, despite its severe AIDS problem, at the end of the 1990s when Thailand acceded [sic] to the TRIPs agreement, the Thai government specifically undertook not to implement Article 8 (on compulsory licensing) for HIV/AIDS treatment.”

For more on this, see:

See also my Facebook post here:

I’ve mentioned before that Cato scholars have inexplicably come out in FAVOR of the horrendous, fascist, IP-pushing TPP, in an article by Daniel “Ikenson” (http://c4sif.org/…/longer-copyright-terms-stiffer-copyrigh…/).

People have told me that just b/c they have one scholar in favor of something does not mean it’s an institutional position. MMhhmm.

Check out this Democracy Now “debate” about the TPP, between Bill Watson, a trade policy analyst at the Cato Institute, and Lori Wallach, director of Public Citizen’s Global Trade Watch. Now what is disheartening for the libertarian listening to this debate (which starts around 11:00) is that almost everything Wallach says is correct and on the libertarian side. She notes that the TPP is not about free trade at all; only a small number of its (still secret) chapters even purport to deal with free trade; the major portion leaked so far is on IP and is pure American company special interest rent-seeking: attempting to lock stronger and longer copyright and patent law into US law via treaty and to export it to the rest of the world; that is, to increase the monopoly privilege of patent and copyright, to reduce internet and artistic freedom, to increase the prices of pharmaceuticals, etc. She is 100% correct to oppose the TPP on her anti-IP grounds, and she is right to condemn patent and copyright as monopolies that benefit special interests and harm the public and consumers.

Inexplicably, Cato’s Bill Watson defends the TPP and fast track *even though* he seems to agree with Wallach that the IP chapter is “problematic” (he nowhere seems to condemn it as monopoly and bad, in as clear terms as she does, however).

Utterly bizarre, when we true free-trade, anti-IP libertarians, find more in common with “Public Citizen’s Global Trade Watch” than with an allegedly free-trade, libertarian organization.

People often tell me that I should not harp on IP so much, or make it a litmus test; that even if I am right about IP, reasonable libertarians can disagree. Well this is an example of why it’s important to get this very important issue right. It is in fact one of the most important libertarian issues (http://c4sif.org/…/where-does-ip-rank-among-the-worst-stat…/), and getting this issue wrong leads people to error on other important issues. As an example, a few years back, several Cato scholars explicitly opposed free trade in drug reimportation in the name of upholding American companies’ pharmaceutical patent monopoly pricing model; unbelievable (see footnote 1 http://c4sif.org/…/objectivist-worried-obamacare-may-weak…/… ; footnote 4 of http://c4sif.org/…/pro-ip-libertarians-upset-about-ftc-po…/…).

Cato’s forums on IP are invariably about IP reform. Only one time can I remember someone for IP abolition, which was Tom Bell, and that (IIRC) only on the issue of copyright (not patent). Their former scholar Tom Palmer was one of the early IP abolitionists but his work was never highlighted there and indeed he seemed to backpeddle a bit in later years on pharmaceutical patents (as mentioned here: http://mises.org/daily/3682 see: http://tomgpalmer.com/…/alive-thanks-to-pharmaceutical-pr…/… and http://tomgpalmer.com/…/healthy-profits-to-help-sick-peop…/… )

One wonders if Cato has lots of pro-patent big business/big pharma donors, and the quasi/former Objectivists in their ranks (http://c4sif.org/…/does-catos-new-objectivist-ceo-john-all…/) which leads them to continually favor IP and downplay the IP abolition case.

Sad when libertarian groups are bad on this issue (http://c4sif.org/…/canadas-free-market-fraser-institute-ur…/). It’s as bad as being bad on taxes, slavery, free trade, the drug war. Down with IP.


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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.