11 Jan Termination of the TRIPS Agreement: Necessary And Impossible
[Dr Siva Thambisetty is an Associate Professor of Law and the Law School, London School of Economics and Political Science. In 2022 she acted as Advisor to the G77+China group Chair’s Team at the Biodiversity Beyond National Jurisdiction Negotiations in 2022.]
Public international law interacts with intellectual property laws in numerous negotiating fora and intergovernmental organisations. I have long been envious of my public international law colleagues; their field has been through many cycles of purposive meaning-making, including holding on to a sense of direction of the world order, and normative scholarship as a transformative project. In contrast, international intellectual property law has remained mired in its private law origins, unable or unwilling beyond some very important but limited pockets (see here and here), to confront how these rights work to entrench and enhance existing imbalances in wealth and power. For this reason, it is significant that the first intervention during the pandemic by an eminent public international lawyer is to call for a termination of the Trade Related Intellectual Property Rights (TRIPS) Agreement.
In her elegantly pitched 2022 Annual Michael Kirby lecture, Prof Orford raises the prospect of applying rebus sic stantibus, a modification of obligations initially assumed by parties to the TRIPS Agreement due to a change in material circumstances. Prof Orford pokes substantive holes at the aura of solidity and self-evidence with which the core elements of the TRIPS agreement are defended to show instead that the basis of the agreement is precarious and historically contingent. From this perspective, the TRIPS waiver becomes a campaign against ‘false necessity’ – a recognition that the presuppositions of the international patent system are far from a natural order of things and is merely what we have ‘temporarily refrained from challenging and remaking’.
I was part of a group of five academics making the case for a limited suspension of rules to allow for wider production of Covid-19 vaccines, treatments and preventive measures during the pandemic. The following thoughts on the question of ‘termination’ of the TRIPS agreement were first presented at a WTO Public Forum event organised by the South Centre in Oct 2022. While I recognise that Prof Orford’s lecture attempts to do something necessary, here are at least three reasons why I think it might be impossible to terminate the TRIPS Agreement.
Perhaps I betray the deep socialisation of my field in acknowledging first, that the TRIPS agreement is more than just an agreement and there is no ‘it’ that can be terminated. International intellectual property law and its expression through the TRIPS agreement is a mode of argumentation – a shorthand for a cluster of ideas, formal rules, norms, epistemic assumptions, and values. Different elements are often lumped together in ways that protects each of them from normative and empirical scrutiny even to the extent such scrutiny exists domestically.
The opacity this clustering generates has made it challenging to have good faith disagreements over intellectual property rights. Consider two examples. First, the implicit equation of the moral basis of property with moral arguments for intellectual property is a trope which misses all sorts of nuances about the instrumental nature of these rights; and underplays contexts where rights may be legitimately curtailed (for an example of how the equation plays out see discussion here in the context of the ‘expropriation’ of trade secrets).
A second example is the equation of the public interest with the patent right-holder’s interests. Legal doctrine in patent law assumes that they are, or can be, aligned even where they self-evidently contradict each other. Motifs like these are folded into a mode of argumentation that protects each of them from scrutiny, making disordered views deeply entrenched in international policy. Meticulous untangling like in this essay often has to precede policy-based conversations. Yet without swaying political opinion and will, it is difficult to contemplate substantive reform of the TRIPS Agreement.
My second reason to be sceptical of the possibility of termination comes from an understanding of the immunity to change in international intellectual property systems. A powerful impetus for change is the recognition of the cost of not changing. Or in other words, reformable systems are characterised by the ability to internalise and take responsibility for notions of harm. Intellectual property agreements do not directly link ‘harm’ to systems’ failings to account for those who are left invisible or fall out of supportive frameworks unlike say, international human rights law or the law of war.
When people who have very little have even less, the suffering caused by the latest denial of access to a life-saving drug or vaccine, is not perceived as an outcome of the existence of intellectual property monopolies over that product. Hence the system requires vast amounts of suffering (millions of deaths) to be moved to be amended or reformed. This makes anything less than crisis-driven calls for change appear inconsequential. And when there is no ‘recognisable’ crisis we get socialised into ever increasing levels of scarcity. Here the work of people like Tahir Amin and Priti Kishtel in linking high prices of drugs, and the inability to access them to the existence of patents is very important as it allows us to name the tangible harm caused by formal laws.
The explosion of interest in intellectual property issues in international fora is linked to a desire by developing countries and non-state actors seeking to recalibrate, revise and supplement TRIPS rules. Helfer observes that the resultant international regime complex has altered the politics of intellectual property; I agree it has done so, for the worse. When new norms are being negotiated or old ones are sought to be re-interpreted in these diverse fora, there is mostly a de facto deference to intellectual property that squeezes the negotiating resources and ambition of developing countries. This brings me to my final point on why the termination of the TRIPS agreement is impossible, even if necessary.
Collateralisation as a phenomenon arises when there is a bid to defer to the World Trade Organisation or the World Intellectual Property Organisation (WIPO) as best placed to make rules on international intellectual property or interpret them; or when there is pressure to prioritise a past way of doing things over future, more appropriate and socially justifiable legal norms. Consider the Biodiversity Beyond National Jurisdiction (or High Seas) Treaty negotiations where there is an opportunity to create new norms for the use and circulation of genetic resources. Elements of this process appear to be clogged by countries who benefit from the status quo. This could be through a refusal to discuss intellectual property on marine genetic resources; or by disaggregating issues according to what is easily resolvable before getting to the really controversial, and then finding positions hemmed in, making reopening intellectual property irrelevant or futile.
Collateralisation is also a feature of the re-interpretation of norms. It can be seen in institutional dynamics that see disclosure of origin of genetic resources in patent applications, or use of traditional knowledge mired in WIPO negotiations for years, calcifying attempts at making progress on a number of allied issues. Regime-shifting has facilitated the proliferation of norms that draw strength from the TRIPS agreement, even as they constrict new frameworks that aim to be less iniquitous.
For the above reasons, it might be easier to begin the process of starving the TRIPS agreement of oxygen than terminating it. How might we begin to imagine this process? At least three ways come to mind. First, when we focus on IP rights, we focus on the exclusivity it creates to the technology product but there is a much greater form of scarcity that accompanies intellectual property rights-led monopolies – the exclusive leverage to make social choices and generate socio-economic relationships around technology products. Termed ‘configuration power’ by Hilgartner, this power is different to market power. It can be actualised through engaging in private ordering through contracts and licensing. Cash and governance-poor developing countries have not been able to call on the private sector’s self-organising capacity and diverse motivations during the pandemic because these are currently exclusively centralised around the cluster of intellectual property rights key players hold.
Intellectual property monopolies are one way to facilitate the involvement of the private sector. However, as we saw in 2020 and 2021 there are other ways to do so using a combination of government refrain and action – advance orders, public sector investment, export controls, even confiscatory levels of compulsory licenses on existing intellectual property rights. Private ordering can be a powerful agent for change however, our collective imagination does not offer many ways to free the power to configure socio-economic relationships from intellectual property rights-led centralisation.
This is where private interests framed by public values can come in. Not all companies might want to make block-buster profits, some may just want a sustainable way to enter a new market, some may be keen on playing the long game and building technical capacity and resilience. Here regional arrangements can be critical. Pooling demand, supply and even responsive regulations to address governance problems regionally, can help create sustainable markets that can offer different kinds of incentives. The plea for a TRIPS waiver is in my view, a demand for greater degrees of private ordering around relevant technologies on the part of low and middle income countries.
Public international law has a rich understanding of informal processes of law-making, which is almost entirely lacking in international intellectual property law – it remains hyper-codified and seemingly impervious to outside critiques. Dense technical rules can be used to shut down exchanges of ideas that try to elevate the discussion to a principles-based one. My second point about starving the TRIPS agreement, is that micro-processes can recreate the kind of injection of public values that we might see as common in other kinds of property holding. These micro-processes put, to borrow Prof Orford’s words, ‘the social question’ back on the table; without allowing it to be ‘othered’ as a question coming from outside; from human rights, from biodiversity rules, or from contractual obligations.
In patent law, well known micro-processes that would fit this description include S 3(d) of the Indian Patents Act, South Africa’s research use exception that allowed Afrigen to reverse-engineer Moderna’s vaccine, and Brazil’s Anvisa that can prevent the grant of medically important inventions. These micro-processes are the inside man of the system – making legitimate and incremental changes that do not raise hackles in the same way that outsider critiques may.
Finally, to change TRIPS function without changing form, my plea to fellow academics and scholars is to urgently advance the process of normative scholarship in intellectual property as a transformative project. We have many such giants in the field – Peter Drahos, Margaret Chon, Pamela Samuelson, James Boyle. Yet, there is a sense in which the critiques provided by such scholars are seen as quaint counter-narratives that do not translate well from domestic policy contexts to trade-related international laws.
When private corporations own rather than merely shape the public realm, when near to medium term cascading ecological collapse is likely and a future pandemic seems inevitable; the means of control over the use, production and circulation of technology becomes central to everything. As Prof Gerry Simpson writes in his book, to do international law is to make an imaginative leap or place some sort of utopian bet, on the future of global life. I see Prof Orford’s call to terminate the TRIPS agreement as a welcome bid to once again allow the legal order to work in the service of imagination.