[The IPKat] Does the retreat from internationalism mean the retreat of IP?

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Oct 15, 2017, 2:17:38 PM10/15/17

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This Kat has been fortunate to have his professional career track the Golden Age of IP. Whether or not that Golden Age is coming to an end,

one thing is certain: the Golden Age has gone hand in hand with internationalism. IP rights may be territorial, but IP, as part and parcel of internationalism and globalization, has seemed inexorable. At least, until now. Whatever one’s politics, it cannot be denied that that the last few years have witnessed a sea change in the status of internationalism. The usual suspects begin with Brexit, America First and Catalonia, with an emphasis on national sovereignty at their collective core. The position was notably set out in a Wall Street Journal article published in May 2017 in the name H.R. McMaster, currently the U.S. National Security Advisor and Gary Cohn, the head of the U.S. National Economic Council, who wrote:

“The world is not a ‘global community’ but an arena where nations, non-governmental actors and businesses engage and compete for advantage. We bring to this forum unmatched military, political, economic, cultural and moral strength. Rather than deny this elemental nature of international affairs, we embrace it.” [This Kat is quoting from September 23rd issue of The Economist, since he does not have an on-line subscription to the Wall Street Journal.]

To appreciate these words (a piece by Daniel Drezner in The Washington Post called it “the most extraordinary op-ed of 2017”), we need to reach back a bit into history. Following the Treaty of Westphalia in 1648, the various combatants to the bloody Thirty Years' War reached a series of agreements that had the effect of enshrining the notion of sovereign states, with non-interference as the norm and balance of power the means for insuring such co-existence, here. All of this worked reasonably well as sovereign states flourished and inter-state violence did not get terribly out of hand, even if the norm was that might makes right.

However, the scope of the horror of World War I led a group of visionaries to contemplate the creation of international structures that would put a brake on the most destructive tendencies of sovereign states. The initial efforts were not overly successful, as World War II demonstrated, but the aftermath of that terrible war was to provide the basis for liberal institutional internationalism to take root, the broad contours of which are, at least for the moment, still in place today, here.

IP had been ahead of this game, with both the Paris and Berne Conventions already enacted before the end of the 19th century, creating an international framework within which the IP law of most sovereign countries could operate (with the US absence from the Berne Convention being a notable exception). But truth be told, all of this IP internationalism was a sideshow until the creation, enforcement and commercialization of IP rights became part of the expanding linkages in global trade that took off in the 1980’s, culminating in the creation in 1995 of the WTO and, for IP, the enactment of TRIPS Agreement. It was the intertwining of the increasing globalization of trade with the transnational structures already in place for IP, all against the backdrop of post-World War II internationalism, which has defined IP practice as we have come to know it.

But for how long? We witness this internationalism being challenged by a call for the return to the earlier form of national sovereignty (what Professors Oona Hathaway and Scott Shapiro call the Old World Order, here), where internationalism (and by extension, economic globalization) and the values that they purport to have fostered will take a back seat, if not be wholly evicted, from the world political stage. And so the question: what will be the fate of IP? There are in principle two possible outcomes.

First, IP will be unaffected. Internationalism was perhaps nice to have, but the creation of works and making of inventions will continue apace. The scope of supply chains may change, but invention and creation will continue, albeit perhaps more at the local level; IP activity is ultimately unrelated to whether nation states are more, or are less, integrated. As Arkady Volozh, the co-founder of Yandex, the Russian on-line giant, has observed: “You can either go global in one service in which you feel good about, or you focus one market and do it really well”. Whatever happens to IP practice going forward, it will not be due to a decline in internationalism (e.g., the challenge to the behemoths of social media will focus on data and privacy, not on classic IP).

Or IP will be impacted, but what will be the vector remain to be seen. In principle, one can posit the impact as either positive or negative. It seems difficult to fathom how the contraction of internationalism will lead to more IP activity. That leaves the other alternative, namely a decline of IP activity, if for no other reason that the retreat of internationalism will bring with it more mercantilist tendencies together with an inward-looking national gaze and reduced potential for market scale. The nature and form of this contraction, and the implications for IP practice, remain open questions. Food for thought for those currently attending the AIPPA annual conclave, this year in Sydney, and those at similar gatherings.

By Neil Wilkof