"To copy is to steal": TRIPS, (un)free trade agreements and the new intellectual property fundamentalism

In theory, the vagueness of the World Trade Organization-administered TRIPS Agreement should provide developing countries with ample opportunities for creative interpretations of its provisions. Despite this, developing country freedom to exploit these opportunities is diminishing rapidly. Dispute settlement jurisprudence is one cause, but this is far less significant than that the United States, especially, and the European Union, have developed successful strategies to hold developing countries to more rigid and higher standards of IP protection than TRIPS compliance requires. In some respects these standards of protection are even higher than those the US has been willing to accept domestically. One of the most effective strategies being employed is that of so-called free trade agreements (FTAs) containing highly constraining and protectionist “TRIPS plus” IP provisions that seem to be aimed to serve the interests of developed world corporations. The FTA negotiations and FTAs themselves seem to be neither wholly free, since the IP provisions in them are inherently protectionist, nor fair to the weaker negotiating parties. Unsurprisingly, business and pro-business interest groups have been very much behind the promotion of TRIPS plus measures. They are popular with the US government and the European Commission not only because they work, but also because the US and European economies, along with those of Japan and certain East Asian countries that tend also to favour TRIPS plus IP protection, are the major producers and exporters of patent, copyright and trade mark-protected goods and services and therefore have much to gain from them. Increasingly, the promoters of TRIPS plus rules are deploying rhetoric that I refer to as the new intellectual property fundamentalism. In its most extreme form, the rhetoric labels copying as piracy as if the two words are synonyms, and even links piracy to terrorism. Oddly enough, as this article points out, this fundamentalism seems largely to be targeted at developing countries rather than being for domestic consumption. It is contended that the new IP fundamentalism is both dishonest and potentially dangerous. Neither the US nor the EU would countenance the elimination of well-established limitations to rights that allow copying of patent and copyrightprotected goods and works under certain conditions. And yet, some developing countries have been pressured to adopt IP standards that are even stronger than in some developed countries. One example is the extension of the copyright term to life of the author plus seventy years in FTAs, as in the US and Europe, but without adopting also the fair use doctrine that is integral to American copyright law and that makes the whole system more balanced. History teaches us that today’s rich countries prospered in part by imitating first and innovating later. Korea copied from Japan and