What does the death of the Trans-Pacific Partnership mean for U.S. intellectual property (IP) rights abroad? The United States pushed heavily, and controversially, for the inclusion of significant IP protections in the TPP. This push is consistent with a broader effort on the part of the U.S. government to include robust IP protection in just about every bilateral or multilateral trade agreement since the turn of the century.
For some corporations, the death of TPP represents a major strategic setback. The international intellectual property regime (centered around the TRIPS agreement, which is part of the WTO) was spearheaded primarily by a number of large firms with interests in pharmaceuticals and in entertainment. The latter worry a great deal about piracy, and wanted to use TPP to lock in strong enforcement mechanisms for copyright violations. The former are primarily concerned with state-level decisions to procure and produce generic drugs that might compete with the more expensive, patented versions available in the United States. In addition, some electronics and technology firms sought greater IP enforcement mechanisms out of concern over technology theft in vertically integrated production streams.
Governments went along with the (often stringent) IP requirements for two reasons: to gain greater access to the U.S. market in other products, and to cement a strategic relationship with Washington. But now, with TPP all but dead and the broader strategic orientation of the United States in some considerable doubt, it’s not clear that the companies which had sought these levels of protection will ever find them. Generally speaking, developing economies do not benefit from high levels of IP protection. Even the United States, Prussia, and France, in the years of British economic hegemony, sought to acquire as much British IP as possible through means honest and (more often) dishonest.
Some argue that a defeat for IP means a victory for global health. Without stringent IP enforcement, governments in the Asia-Pacific can continue to invest in the production and distribution of generic drugs, usually at a small fraction of the costs of the originals. Similarly, the ability of western corporations to assert ownership of certain indigenous medicines and treatments will continue to face limits.
No replacement for the TPP, whether spearheaded by China or by a consortium of regional states, will include IP protections as restrictive as the ones in the current agreement. No other nation (or at least, the major corporations of no other nation) benefits as much from robust IP protection as the United States. Developing countries in other parts of the world have already begun to play hardball over U.S. IP concerns. Without the TPP, US negotiators will have to try to pursue IP protection through bilateral agreements, a second-best strategy.