Recalibrating Trade Interests for a New Economy

Since it has substance and influence, the conception of a 'new economy' or a 'knowledge economy' brings a fresh array of redefined interests to bear on the positions taken in trade negotiations, and induces a demand for new legal and ethical standards, most strikingly in revisiting the conventional notion of the public domain or the common heritage. Alongside, and influenced by, traditional factor endowments, economic interests are increasingly structured, construed and calculated in terms of equitable access to knowledge resources and to the technological developments they enable, as well as access to markets for innovative products. This is a political reality, whether or not it corresponds to an objective or empirical appraisal of national interests. Hence, conventional rivalry over traditional resources extends to the resources needed for knowledge-based economic activity. The knowledge component of international trade is perceived as a determinant of future prosperity, and the conditions of access to knowledge resources increasingly figure in political assessments of the terms of trade. This partly explains why the debate over equity in access to, and use of, knowledge resources tends to be polarized. It is a debate that can assume the character of trade negotiations, which tend towards a zero-sum trade-off dynamic, even when there are actual commonalities of policy interests in the optimal international use and distribution of these resources and allocation of their benefits, and despite the actual diversity of holding of knowledge resources, which are not neatly divided on North-South lines and do not respect national borders, but have tangled provenances and diffuse genealogies: consider the diverse sources of GR that have yielded today's principal food crops, or the 'ownership' questions that relate to TK and cultural expressions held by kindred communities, diasporas or urbanized traditional communities.

Trade negotiators seek to resolve such divergences through a mix of pragmatic settlement and the articulation of formal rules and standards. As knowledge economy issues spread into different policy areas - health, environment, agriculture and indigenous issues - and as a complex matrix of ad hoc settlements and international standards develops, the international legal basis for resolving these divergences is richer and more elaborate, but by the same token, more diverse and potentially incoherent and conflicting. Strengthening the normative framework can simply defer or transfer the question of whether there are prospects for a universal conception of, and sound jurisprudential basis for, an equitable and legitimate disposition for actual access to, and use of, knowledge resources.

The archetype of this shift in perceived trade interests is the inclusion of IP and services interests in the negotiating mandate of the General Agreement on Tariffs and Trade, the Uruguay Round (GATT-UR), culminating in the incorporation of positive standards on IP and trade in services within the regime of international trade law through the vectors of TRIPS and GATS. In pressing this agenda against the resistance of key developing countries, the principal developed economies were responding to perceptions of a reversal in terms of conventional trade, a technology-driven recalibration of trade interests and claims that lax intellectual property protection (IPP) effectively denied market access to knowledge-rich exports. This development displayed the hybrid quality that typifies knowledge economy negotiations: on the one hand, it was constructed as a pragmatic negotiating deal as part of the trade-off between opposed interests that constructed the single undertaking of the Marrakesh outcome, plainly positive law that resulted from the realist assertion of interests and a deal enabled by perceived concessions in other areas; on the other hand, it is ostensibly a distinct normative framework for trade in knowledge resources, invoking abstract conceptions of equity and balance that stand in tension with a complex jurisprudential matrix of trade law, international and municipal IP law, and broader international public law, including emerging norms on the environment, public health and human rights. The negotiating dynamic that yielded tariff bindings in earlier GATT rounds this time yielded guiding principles that affect knowledge management on the domestic plane. The actual long-term consequences - economic, legal and political - of TRIPS as such are only beginning to be felt, still less measured, but a widely held and influential view over the first 10 years of its existence in international law saw it as a revolutionary assertion of control over knowledge resources: 'The principles of common heritage, free flow [of information] and national sovereignty along with the NIEO

agenda meet their Waterloo in TRIPS____Thus an old dialectic, which lies deep at the heart of capitalism, between the "natural" right of private property and needs-based access to resources reaches a new historical apogee. But this time its subject is not land or goods, but information' (Drahos, 1998).

More generally, perceptions of misappropriation or inequities in access strengthen the resolve to assert intangible interests, and therefore exert material influence on how trade and economic interests are analysed and pursued; such concerns are translated into claims that trade is unfair or practices are inequitable.

This has been immediately apparent in the mainstream debate over IP as a 'trade and' issue, alongside trade and the environment, human rights and labour standards, a broadening of trade disciplines to give greater recognition to the fairness and equity of trading partners' domestic regulation. One view is that trade which infringes intellectual property rights (IPRs) is an unfair or illegitimate form of trade, provoking an opposing view that IP rules are an illegitimate intrusion within a trade law regime. But the assertion of trade interests centred on the equities of access and distribution of benefits from knowledge resources and derivative innovations has also been manifest in negotiations on biodiversity and the regulation of GR; it arises in specific charges of biopiracy, of misappropriation or usurpation of geographical indications (GIs) and of inequitable access to benefits from the use of biological resources. Rather than an egregious and distinct outcome, TRIPS is closer to a symptom or metonymy of a broader shift in the dynamics and direction of trade negotiations, as new economy or knowledge-trade concerns force an evolution in the assessment of trade-related interests and in the very lexicon of trade negotiations. The perceived clash of interests in the control of knowledge resources extends well beyond the conventionally recognized scope of IP regimes, and has opened up significant new normative claims of misappropriation, usurpation and unfair and inequitable use of knowledge resources. This may be partly characterized as a defensive reaction to the Uruguay Round outcome; the thrust against counterfeit and piratical trade that formed the nucleus of the elaboration of the TRIPS meets its parry in the charges of misappropriation of traditional cultures and biopiracy. But this development has deeper, broader roots, preceding the TRIPS negotiations. One of the most evident drivers of change is the impact of technological development and its unsettling effect on established policy balances.

Technology and the equitable balance

Even where it has been possible to establish robust and inclusive rules that enshrine standards of equity and fairness in the access and use of knowledge resources, technological development precipitates the progressive reappraisal of the same equitable balance, partly because of the perception of injustice that technological developments can induce (Taubman, 2005b). This creates pressure to recalibrate the balance with the goal of maintaining it. For instance, the test of 'normal exploitation' is embedded within international copyright law as the basis for assessing the legitimacy of exceptions to copyright; this notion of normal exploitation has to evolve in order to be sustained at a time when entirely new markets for copyright open up and attain a major market significance in a very short period, such as the market for mobile phone ring tones, which has spurred licensing practices for further derivative uses such as films that include excerpts from ring tones. The World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) (1996) anticipates the dynamic yet conservative character of this idea of maintaining balance at a time of technological change, the agreed statements on art. 10 referring to the possible need to 'devise new exceptions and limitations that are appropriate in the digital network environment' in order to maintain the fundamental policy balance. In turn, the impact of technological change on established policy balances causes trade interests to be reconceived. For example, perceived inequity in accessing benefits from biotechnology creates a negative feedback loop, increasing the political and legal barriers for users to gain access to knowledge resources required for technological innovation, and for market access and acceptability of new technologies. The promise of agricultural innovation can be eclipsed by conflicting conceptions of equity of access and fairness in benefit-sharing. Acceptance of new technologies is linked to confidence in fair market access and in access to new technologies:

A global governance system that provides opportunities for market access will help foster the commercialization of new technologies____resistance to new technologies is likely to be reduced by changing perceptions of access to the new technologies as well as to their markets. This has not been the case with agricultural biotechnology, which involves worldwide exports with the potential for product displacement, while leaving wide margins of uncertainty for technology followers.

(Juma and Konde, 2002)

Similarly, innovation in winemaking among 'new-world' producers has fostered unease among traditional producers about the legitimacy and fairness of these new oenological practices. This is expressed in a value-based dichotomy between 'artisanal' and 'industrial' winemaking: for example, distinguishing traditionally made wine in oak casks from wine produced in stainless steel casks with oak chips to imitate the organoleptic effect of traditional casks, a subject of trade negotiations between new-world producers and European regulators (European Commission, 2003a,b,c). This assertion of values influences negotiations over the legitimate terms of access to markets and creates pressure to trade off other interests (especially freedom to use verbal indicators of certain traditional values) as an explicit quid pro quo for access to innovative or industrial oenological practices.

The impact of technological change on the established balance of interests was foreseen early in the era of new biotechnologies, and has influenced the evolution away from the notions of common heritage to the assertion of claims of GR as a 'form of national property':

[A]s the coming decades witness the elaboration of a new regime of production based on the manipulation of genetic information, germplasm will become an increasingly central resource. Third World nations are justified in their pursuit of the common heritage. But the material consequences of the decommodification of all plant germplasm might actually work to the detriment of the South. The real problem for the South is not acquiring access to the elite lines of the North but establishing control over and realizing some benefit from the appropriation and utilization of its own resources. Third World nations have little to gain from quixotic pursuit of common heritage in plant genetic resources. But they have a great deal to gain through international acceptance of the principle that plant genetic resources constitute a form of national property.

(Kloppenburg, 1988)

The subsequent evolution of the international regime governing GR has seen this insight borne out in practice, in particular with the deliberate expression of sovereignty over GR and a pattern of assertion of quasi-property rights over GR. The political trade-off that characterized the CBD in 1992 was between a firm codification of national sovereignty over GR and an agreement to facilitate access consistent with the Convention's objectives. The FAO (1983) declared plant GR to be 'a common heritage of mankind to be preserved, and to be freely available to all for use, for the benefit of present and future generations'; it clarified in 1989 that 'the term "free access" does not mean free of charge', that benefits from access to such resources were 'part of a reciprocal system' (FAO, 1989a) and that access was subject to recognizing 'rights arising from the past, present and future contributions of farmers in conserving, improving, and making available plant genetic resources' (FAO, 1989b). Finally, state sovereignty over plant GR was explicitly enshrined in international law in 2001 in the ITPGRFA, maintaining consistency on this point with the CBD, which had articulated this principle in 1992.

These developments exemplify the emergence of another new economy, one that is characterized by a re-evaluation and assertion of control over hitherto neglected knowledge resources, including the aggregation of genetic information and traditional know-how embedded in biological resources:

For the first time we realize we have the wealth that everyone else wants____All this time the development paradigm made us beggars and kept us running to the government to give us something; made us keep running to northern aid agencies to give us aid____We now realize we have the capital and we have to do our own planning for development on the basis of this living capital.

Sovereignty over such knowledge resources has been asserted in part as a reciprocal response to the perceived use of IP law to extend exclusive control over the knowledge resources held in the developed world. Yet, the affirmation of sovereignty does not typically aim, at least in principle, at exclusivity over resources per se. In the key international regimes that govern GR, the recognition of sovereignty over resources and a strengthened right to set the terms of use are balanced by an expectation of reasonable access to the covered resources. There is a predisposition towards appropriate forms of use as necessary to attain broader public policy goals. Both the CBD and the FAO treaty pivot on the expectation that GR should and will be utilized, subject to equitable safeguards. The exercise of sovereignty typically has the net effect of making access conditional on equitable considerations or reciprocal benefits - these are variously construed in terms of sharing of monetary or non-monetary benefits, access to derivative innovations for research and breeding, and other reciprocal access to derivative knowledge resources; as well as other forms of contribution to broader developmental goals. Equity considerations are also expressed in terms of procedural fairness, for instance, in the CBD's requirements for prior informed consent and mutually agreed terms. The embedded notion of equity is therefore not limited to reciprocal claims of exclusivity. Under the ITPGRFA, benefit-sharing comprises the exchange of information; access to, and transfer of, technology; capacity building; and the sharing of the benefits arising from commercialization (art. 13.2). The obligation to share direct economic value obtained from the resources is triggered not by property rights in the resources, but by the commercialization of a product incorporating a resource covered by the treaty; this is mandatory only when access for further research and breeding is restricted (art. 13(d)(ii) ), such as through IPRs or potentially through technological measures or other legal measures such as contracts, although these questions are still under development in the context of implementation of the treaty.

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