## Global Property Rights in Information: The story of TRIPS at the GATT

- Summary:
- Implications of TRIPS: (a) propertization and assigning of cost to
information/intellect, (b) top-down structure of TRIPS Council (presumably
controlled by IP-interested industries, e.g. software, biotech and media) to
control *states* to control their own industries/people in this new regime.
- US business got other (IP-importing) countries to do this despite this being
against everyones interest (except US business). Their obvious interest was
securing lost profits from piracy (whether or not we consider that theft is a
purely social construct).
- US state (Congress) interest was less obvious: maintain US competitiveness
and hegemony (more detail on this below in Diminished Giant Syndrome notes).
- Story: Stronger property rights were needed to protect American ideas
and industry. Better protection meant more jobs and these intellectual property
based industries were the very ones that would restore the US to a positive trade
balance with the world. Note: US business can always say more profits -> more
jobs.
- The IP strategy suggested by Pfizer CEO-chaired Advisory Committee for Trade
Negotiations (ACTN): good cop, bad cop. Good/persuade cop: proselytizing work by
intellectual property experts in developing countries, preferably under the aegis
of some economic assistance program like [USAID]. Bad/force cop: forg[e] a link
between the international trade regime [as many levers as the US could pull] and
the development and enforcement of intellectual property standards: punitive trade
actions against countries dependent on US markets (e.g. Brazilian coffee, GSP), IMF
or WB loans dependent on IP protection.
- Bad cop: US state ended up adopting one of these provisions: punitive trade
actions, on bilateral level (with 301 process and US business surveillance thru its
global trading posts -> IIPA -> USTR -> appropriate enforcement/control of various
actors (states *and* people, e.g. jail Tower publications head)). But one was
enough: it gave US leverage that it lacked in WIPO (where it would be outvoted in
1-country, 1-vote system).
- Business does this by influencing USTR thru ACTN, IIPA, Business Software
Alliance (BSA). They provided the USTR with a continuous stream of reports and
estimates as to trade losses that US companies were experiencing in various parts
of the globe and while, from time to time, the USTR expressed some mild skepticism
about the size of the estimated losses, there were no other figures to go on.
- Good cop:
- BSA pursued consciousness raising to make IP a culturally accepted
idea. BSA and others undertook well publicized criminal prosecution against firms
or individuals guilty of copying. Messages about the perils of piracy appeared on
videos; phone in a pirate hotlines were established; seminars on copyright
enforcement issues were provided. Large accounting firms began to offer their
clients software audit programs and illegal copying became a contingent liability
within the audit process. Whenever governments were facing relevant law reform
issues the intellectual property lobby would make submissions, often sparing no
expense.
- IPC pursued consensus building with European and Japanese industry to
care about IP, thus pressure their own governments.
- Enshrine in GATT. Lots of room for trading other concessions for IP
protection.
- US had advantage of disciplining effect of expert knowledge in
negotiating IP protection.
- US had also done bilateral work to make sure they had numbers at GATT,
which pressured the remaining minority to fall into line.
- How to analyze this stuff: motives of various actors, what they did,
- Some takeaways for me:
- The potential power of legislative subsidy as a way to influence policy. (I
added this to
https://docs.google.com/spreadsheets/d/1C3UuobZpiJbuP1KjDnhx8gA3qJDQx3qROguR8bS7z7E
/edit#gid=0.)
- More generally, *you have to try* to influence the policy agenda, put
something on there. E.g. the ACTN suggested many provisions but the USTR only
adopted one in its bilateral trade duels, which ended up being enough.
- Wow, so a group can get someone to pay a cost for something that usually
isnt thought of and legally held as property? Can we do a similar thing for
environmental protection?
- Coercive power is not on our side this time (I dont think?). How could
we twist the hands of e.g. states to enforce this propertization?
- Rule of law seems important in the US. Consider that we knew that US coercion
could be used to enforce IP protection. A seemingly straightforward strategy for US
business would be to figure out a way to personally massage the USTR behind closed
doors to take punitive trade actions against countries that didnt protect IP.
However, US business tries to enshrine it in US law (301 process of Trade Act of
1974) and international law (GATT).
- Maybe there is a statutory need to grant USTR expanded authority.
- Maybe this works to influence people who are unaware of the history of a
law, and who just follow the letter of the law (e.g. judicial system?).
- Wow, the tricks of influence I learned in debate are actually source of
power. US had advantage of disciplining effect of expert knowledge in
negotiating IP protection. Much room for persuasion outside the realm of force
(bad cop).
- Get numbers bilaterally before pursuing multilateral strategy (uses social
proof illusion).
- [I]t would be a mistake to see TRIPS exclusively in terms of the powerful
coercing the weak. US business was never certain that TRIPS was doable Linking
trade and intellectual property simply would not have been possible without the
creative authorial input of lawyers and economists. It was they who alerted US
companies to the possibilities that such a linkage might bring and provided the
necessary technical expertise. If, for example, US business had not tabled a
concrete proposal on the type of arrangement that it wanted from the GATT, the
TRIPS negotiations almost certainly would have failed to produce a detailed and
comprehensive agreement. See the legislative subsidy point above.

## The Diminished Giant Syndrome: How Declinism Drives Trade Policy

- Summary:
- Motives
- US state (e.g. Clinton) pursued myopic and self-indulgent whats in it
for us [/ were giving stuff up to the evil enemy Japanese] economic policies for
political reasons. (Can see the political success of weve made too many
concessions to rest of the world in the past with Trump today.) The political
motivation for this means that state might not care to what extent this
unfairness is a real (long-term) economic problem for the US.
- US business has an interest in protectionism. E.g. Big Three automakers
wanted US antidumping policy once they saw Clinton administration pursuing
aggressive action against foreign competition.
- It seems that US state and business meshed in this weird dont diss
America / Americas gotta be the best and you foreigner are threatening that +
lets expand profits for US business motive.
- Policies/actions within these motives (within this weird US state and biz
motive intersection)
- Can throw up any evidence to support this American declinism, so lets
be dicks to other countries position: e.g. America historically has given
unbalanced trade concessions (apparently not true), Japan is closing its economy
off to us (misconstruing different institutional features of Japanese economy as
closed-ness, or deducing closed trade policies from Japans chronic payments
surplus).
 - A policy: US unilaterally pursued changes in trade policies with
trade/protectionist threats (e.g. 301) if these demands werent met, but these
threats are unlikely to work and provoked in kind retaliation.
- A policy: US also forced preferential trading arrangements in regional
blocs (e.g. NAFTA).
- A policy: IPR (see above Global property rights in information notes),
with the spin that Japan was stealing US know-how (stop dissing America +
Microsoft, Pfizer want their profits back).

## Professional Innovation: Corporate Lawyers and Private Lawmaking

- Not too much of interest, besides that private law firms can make law by putting
a device out there, having it tested in court at some point, and having it upheld.
So they set the agenda, etc. They can push for conventions in social relations
which get tested in courts.
- Might be a way to ban people or corporations from doing certain things, outside
of the influence legislation process.