TTIP's IP Chapter: Nothing to be Gained (Part 2)

It would not be difficult to convince the various constituencies arrayed against the expansion of intellectual property rights to support the removal of the IP chapter from the projected U.S.-European Union free trade agreement (known as TTIP, the Transatlantic Trade and Investment Partnership). Open source advocates, First Amendment partisans, pirates and free riders, as well as ordinary American consumers, see little to be gained from yet another international commitment to strong IP. Eliminating the IP chapter from TTIP should appeal to the U.S. IP industries as well. There is little to gain, and perhaps much to lose, in including an IP component to TTIP. IP zealots (and I'm talking to you, Hollywood) might be better served to await a better day.

As I argued in part 1 of this essay, there is little ground the European counterparty is politically willing or able to give in any TTIP IP negotiations. The TTIP IP chapter is a lightning rod for anti-globalists - and the European Parliament will guard the populist victory it won in quashing ACTA. And neither the United States nor the European Union seem ready to undertake the extremely difficult task of harmonizing substantive IP law across the Atlantic. The Americans and the Europeans seem to share a resignation to let "vivre la différence” in substantive IP rules; each of course would be satisfied by a wholesale capitulation to its respective IP model, yet each recognizes the impossibility of such an outcome. Impending EU substantive IP harmonization - in patent and copyright - pursued through the EU legislative process might be a more favorable opportunity to highlight (with a light touch, of course) the gains to be achieved through transatlantic IP convergence (admittedly moving EU IP law closer to U.S. models).

Leaked reports suggest some Europeans see possibilities for U.S. movement in TTIP with regard to geographical indications (GIs). Perhaps. But the United States clearly recognizes the intense desire of certain European interests for a stronger GI regime (especially with regard to wines). The United States will likely make painful demands of the European Union before making concessions on GIs.

In the end, there is not much new nor important that can form the IP chapter of TTIP beyond simply restating the ongoing general commitment of the United States and the European Union to a high standard of IP protection. And there is a downside to a modest agreement (again from the perspective of those U.S. industries seeking a global advancement in the protection and enforcement of IP rights).

TTIP’s IP Chapter: Nothing to be Gained (Part 1)

President Obama announced in his 2013 State of the Union address that negotiations for the Transatlantic Trade and Investment Partnership (TTIP), a United States-European Union free trade agreement, were on. There is something silly about calling a trade agreement a 'partnership;' the on-going Trans-Pacific Partnership uses this same label. But the folks in Washington are more clever than you and me: they know that the older style ‘free trade agreement’ (FTA) would be DOA in Congress.

TTIP’s central features follow the FTA model. Little thought seems to have been applied to fixing the provisional TTIP agenda: TTIP would provide for zero-level tariffs for U.S.-EU trade, an address various non-tariff barriers between the United States and the EU, introduce a misbegotten investor-state arbitration mechanism, and include an intellectual property chapter. It appears now that little positive can be achieved from inserting an IP chapter into TTIP. It is at best a waste of time -- and could undercut U.S. and EU IP efforts in other fora. What were they thinking?

In this first post, I examine the constraints faced by European Union negotiators. The EU has precious little room for maneuver on the IP front; IP provisions can only attract and intensify opposition to the entire TTIP package. These political limits are clear to the Europeans; they are perhaps underappreciated by the U.S. proponents of TTIP's IP coverage.

The Electronic Silk Road: How the Web Binds the World Together in Commerce by Anupam Chander

I saw a caravan once, in Afghanistan. It was a little caravan: three camels and a small family. But it was enough of a caravan to invoke in my imagination the Old Silk Road. I wondered (until a French officer ordered me to leave the area) where the travelers came from and where they were headed. All I could take away was their direction of travel: East.

In the Electronic Silk Road, Anupam Chander describes digital trade routes. The new trade proceeds along electronic pathways; it is fiber and cable and not camels that transmits value across great distances. But the Electronic Silk Road Chander studies has a marked geography; place still matters. We find Silicon Valley and Bangalore and (as before) China, marking the major stops and starts along the way (Chander likes the word entrepôt).

And the poles of the Electronic Silk Road, like the Old Silk Road, have valency. Chinese goods seduced the West for centuries: spices and trade goods and the silk that gave name to the trading route. The problem for the West was China’s notorious indifference to Western goods -- the West did not produce much the Chinese wished to have. Money was only a partial solution. It could of course pay for Chinese goods, but money, even in the days of gold and silver, was effectively a future claim on the West held by China. The Old Silk Road did not fit the mercantilist design of offsetting streams of goods.

The Sovereign Citizen: Denaturalization and the Origins of the American Republic by Patrick Weil

We each deploy an array of identities in forming our social selves -- we can be, say, a Methodist and also a Southerner, and black and a civil engineer and gay. And all of this and still an American. Each aspect distinguishes us; together they individuate us. No single identity -- even that of our nationality -- adequately describes who we are, how we see ourselves. In these times, we no longer see the possession of one nationality as excluding another; many have more than one nationality. We can be both French and American; one does not displace the other in the modern imagination. (A nod to the late Tom Franck here, who explored these themes, personally and in his writings on nationality.)

Yet certain identities have been viewed as inherently incompatible with the holding of the fullest form of American national identity: U.S. citizenship. At various times one could not be an anarchist or an Asian or a Nazi or a communist and become (or perhaps remain) an American. Patrick Weil examines these disabling identities in The Sovereign Citizen, a thorough history of U.S. naturalization law. His emphasis lies with denaturalization: that is, the legal reversal of the grant of U.S. citizenship to an alien. For much of the 20th century, the recourse to denaturalization expands in parallel with the stiffening of opportunities for immigration. The vulnerability to denaturalization marked the ‘second class’ nature of U.S. citizenship acquired through naturalization; the hold of U.S born citizens on their nationality was (and continues to be) more secure. Denaturalization as a broad practice then collapses: from the Warren Court onward denaturalization has become an exceptional act.

Our view of citizenship shifted during the 20th century. It began as an exclusive (if not jealous) relationship between the United States and its nationals, characterized by duty and loyalty. These understandings differ from today’s far more easygoing tolerance (if not encouragement) of multiple nationalities and distributed allegiance. Weil’s book explores and the targets and the techniques of denaturalization.

Extraterritorial Government Use of U.S. Process Patents after Zoltek

The federal government -- and its contractors and subcontractors -- have long enjoyed an effective ‘compulsory license’ for the use or manufacture of inventions covered by a U.S. patent. 28 U.S.C. §1498 relaxes the government’s sovereign immunity and supplies a special remedy to the patent holder. The patent holder may recover reasonable compensation from the federal government for the use or manufacture. Thus, a government contractor can carry out a contract without concern for an infringement action; the government will answer any patent holder’s claims.

The operation of Section 1498 applies to both product and process patents. Section 1498 contains an express limitation to any claims ‘arising in a foreign country.’ This limitation, as well as the territorial limitation found in the basic patent infringement statute [35 U.S.C. §271(a)], and their interpretation with respect to process patents, were the basis of the dispute between Zoltek Corporation and the federal government.

The eventual resolution of the Zoltek litigation by the Federal Circuit [672 F.3d 1309] settles various questions of interpretation concerning the extraterritorial dimensions of the government use ‘license’ with respect to process patents -- but it also leaves a rather worrisome ‘gap’ in the coverage of the basic provisions concerning process patent infringement. Consider these two propositions:

1. In the absence of authorization, where every step of a process patent is practiced in the United States, liability under 35 U.S.C. §271(a) results. However, if any step of a process patent is practiced outside the United States, there is no direct infringement. 
2. Where every step of a process patent is practiced outside the United States and the resulting product is imported into or used within the United States, liability under 35 U.S.C. §271(g) results. 

So here’s the gap (and the facts of Zoltek seem to fall into this gap): if a process patent is practiced partly in the United States and partly outside the United States, there may be no liability. This odd result seems to follow from the text of 35 U.S.C. §271(g), which is triggered by the importation or use of a product.

Hunting Season: Immigration and Murder in an all-American Town by Mirta Ojito and The Winter of Our Discontent by John Steinbeck

In Hunting Season, Mirta Ojito tells the horrific story of the killing of an Ecuadorian immigrant, Marcelo Lucero, in Patchogue, Long Island at the hands of a group of brutish teenagers. It is a small-town story with international reverberations. At first blush, it is an investigation of American intolerance for the other run wild. Lucero was a poor, hard-working man, searching for a better life. His attackers are themselves lost souls, largely unknown to one another prior to the evening of Lucero’s killing. Each kid seems to lack the basic human understanding that there is something wrong with beating up a man simply because he is a ‘beaner.’ Patchogue is or was a community where the blood sport of attacking random Latinos goes unremarked. It is a dreadful story Ojito presents, and Patchogue appears as a dreadful place.

So what has happened in Patchogue? What does the killing of Lucero constitute? The knife-wielding 17-year-old points to his Latina girlfriend to demonstrate his open mind. Another attacker is both Puerto Rican and black -- the kids embrace him as their friend. Our American experience with racism -- and hence hate crimes -- largely involves victims from established and permanent communities (including the native community). Nativist violence may fall into a different category. The Patchogue 7 conceded they identified and attacked Lucero because of his ethnicity -- but there seems to be more that drew Lucero into their trap. They also understood that Lucero was a foreigner -- and likely one with a shaky immigration status. Lucero’s vulnerability invites this community reprisal.

Euro Money as Euro Language

This is the first of a series of reflections on the social meaning of the Euro.

Investigations of the social character of money often feature an analogy to language. Like words, money forms intelligible signs. Money, like language, is a critical medium of social exchange. Money, like language, is constitutive of identity: the particular kind of money we use, in part, makes us who we are. And money, like language, is both stable and unstable over space and time.

The architects of the European Monetary System (EMS) anticipated that the Euro would serve as an institution around which a European consciousness could be built. The Euro (at least in its material forms) functions like the EU flag or the EU passport to construct a new identity that plays on commonplace nationalist expectations. That is, when we see flags or passports or money, we have been acculturated to expect national sponsorship. The European Union thus displaces the traditional state in presenting itself through these institutions; if not precisely declaring itself to be a state, the European Union is, at a minimum, asserting that it is like a state for various intents and purposes.

But notice the peculiarly assertive case of the Euro. The EU flag often flies alongside the traditional flags of the EU Member States. The EU passport is formally issued by the respective member states: while it prominently features “European Union” on its harmonized cover, it also bears the name of the relevant member state. The EU passport in fact overstates the EU nature of the document. A passport begs the admission of a members state’s nationals into another state’s territory; it is only secondarily evidence of nationality (and in the case of EU passports, evidence of the bearer’s status as an EU citizen). Through flags and passports, the EU and the relevant EU member state co-occupy a space in the EU citizen’s imagination that had been occupied by the state alone.

How Asia Works: Success and Failure in the World’s Most Dynamic Region by Joe Studwell

Pity Joe Studwell. He has written a very intelligent, very thoughtful book. You might not agree with much of it; I have my doubts about his recipe. But there is little doubt what the book is: an exercise in economic history, with a focus on a peculiar developmental pathway followed by a few highly successful (generally northern) east Asian countries and not followed by certain (largely southern) east Asian countries. And geography has nothing to do with these diverging outcomes.

So poor Studwell delivers this intelligent book to his editor - one imagines - who decides it needs a snazzy title. Regardless of whether the title describes Studwell’s book. Studwell writes about ‘How Certain Asian Countries Developed’ - not about ‘How Asia Works’. He has very little to say in How Asia Works about how any of Asia works today - again, he is an economic historian. And he makes no claim within the book’s pages that Asia is ‘the World’s most dynamic region.’ Poor Studwell.

He can take comfort from having written a provocative book, which challenges much of the prevailing orthodoxy in developmental economics. And he’s obviously willing to horrify both left and right - praising Robin Hood-esque land reform (but not agricultural collectivization), autocratic leaders who impose export discipline on their cronies, and the elegant effectiveness of capital controls.

Studwell examines the East Asian development successes (Japan, Korea, Taiwan, and China) and the laggards (Malaysia, Indonesia, Thailand, and the Philippines). The winning path, according to Studwell, involves three distinct phases (“one, two, three,” he calls these in his concluding chapter). These three phases are a recipe for developmental success, they form the “same stretch of the river” that poor countries must navigate.

The first stage requires equitable land distribution to absorb labor and capture the productivity gains associated with moving to garden-style agriculture by small family landowners. The magic here is that everyone works - and most start at the same base. Garden intensity agriculture yields very low returns on labor but enhanced returns on land - it permits the accumulation of small surpluses that can be used to fund imports of necessary technology.

The second phase is the development of export-oriented industrialization. And Studwell cannot emphasize enough the importance that industrialization be export-focused; import-substitution strategies are doomed to fail. Here we see the green thumb of the successful state. Prospering East Asian nations do not (generally) direct their economies; rather they provide incentives and protection to exporting firms (fertilizer?) and then apply discipline (weeding?). The state does not pick winners, but it does cull losers. Studwell traces the development of the export-oriented automotive industry in Korea. Several firms were launched, but in the end one survives: the Hyundai/Kia complex.

Studwell’s third phase involves a sheltering set of financial policies. The state must support its exporting firms financially - which necessarily involves allocating capital in directions that would not be justified by short-term returns. Left unguided, private banks chase quickly realizable returns from investments that may have little transformative effect (luxury hotels, anyone?) Savings must be captured and directed, and this involves exchange restrictions.

So what went wrong in the other East Asian countries? Why do not Malaysia, Indonesia, Thailand and the Philippines share in the prosperity? Here the answer is straight out of Tolstoy: each fails in its own way. For Studwell, this means each (at one or more critical junctions) fails to progress down the ‘same stretch of the river’. But this simplifies the error. There are many diverging pathways, many other policy choices that can be made. After all, there are no illuminated signs marking the certain pathway to developmental success. Studwell sees certain leaders as developmentally clear-headed (including MacArthur and Park Chung-hee) and others as muddled (Mahathir); Marcos of course was a thief.

It is not a question of following advice; Studwell makes clear that most advice given developing countries is positively wrong-headed. And while history may demonstrate (as Studwell argues) that the peculiar one-two-three recipe worked for Japan, Korea, Taiwan and China, it does not follow that it will work (or would have worked) for others.

The tone of How Asia Works is dry, to put it mildly. But I did enjoy Studwell’s occasional accounts of arriving in various Asian capitals and noting the correlation of personal service to the local Gini coefficient (a metric of wealth inequality within a particular country): Studwell instantly senses the passage from Gini coefficient 3.0 to 5.0. The northern East Asian countries Studwell studies not only ‘work’ in the sense of greater per capita wealth (China aside); they also have (somewhat) more equitable distributions of wealth.

How Asia Works is longlisted for the 2013 Financial Times and Goldman Sachs Business Book of the Year Award.

See my reviews of these other longlisted books for the 2013 FT/Goldman Sachs Award:
Ray Fisman and Tim Sullivan, The Org

• Neil Irwin, The Alchemists
• Viktor Mayer-Schönberger and Kenneth Cukier, Big Data
• Moisés Naím, The End of Power

The End of Power: From Boardrooms to Battlefields and Churches to States, Why Being in Charge Isn’t What it Used to Be by Moisés Naím

Moisés Naím sees the decline of power across many institutions. He is at times wistful, at times celebratory in his reaction to power’s decay. But he isn’t entirely clear why we should care about the passing of power. The powerful do care; Naím has many powerful friends who lament power’s loss of magic. Popes, pols and pundits just don’t get the respect their predecessors received; their authority is more circumscribed, more readily challenged (the same decline is noted by law professors). But for the greater number of us, who are in more settings objects of the power of others than detainers of power, the end of power is not a self-evident cause for concern.

A decline in social organization is a cause for concern – and to the degree the phenomena described in The End of Power signal a loss of capacity for coordination, Naím’s book is more than an indulgence of ambivalent nostalgia. Naím is careful with his definition of power: power is the ability of some few - the powerful - to direct the actions of others. And, he asserts, there are four means by which power is exerted: muscle (force), code (tradition), pitch (persuasion), and reward (incentive).

Naím is a superachiever who has spent his life at or close to the top. He was a prominent politician in Venezuela – and since has become a heralded writer in the United States. As such, his personal prescription, given toward the end of The End of Power, is quite surprising. Get off the elevator, Naím urges. And by this he calls for an abandonment of mindless ambition and more; elevator thinking is the focus on rank and hierarchy, which promotes power as an end in itself.