Daniel Hemel on International IP Law

Why Do Nations Obey International IP Law?

The wealth of nations lies largely in intangible form. The World Bank estimated in a 2011 report that intangible capital constituted more than three quarters of the world’s wealth. And the distribution of intangible capital is highly uneven. Estimates from the same World Bank report indicate that high-income OECD countries, which account for approximately 14% of the world’s population, hold more than 86% of the world’s intangible capital. Compared to the distribution of physical assets, the distribution of intangible capital is markedly more skewed toward a select group of high-income countries.

Sam Halabi’s ambitious new book, Intellectual Property and the New International Economic Order, examines the forces driving the unequal distribution of intangible wealth and the forces pushing back. The stark facts set out in the first paragraph of this post present something of a puzzle: Why do lower and middle income countries abide by an international IP regime that concentrates intangible wealth in the hands of a few? Why, for example, do they pay American and European pharmaceutical firms for patented drugs rather than manufacturing those drugs themselves and then distributing the drugs to their own citizens at low prices or for free? Why do they pay Monsanto and DuPont for patent-protected seeds and pay publishers for copyrighted works when they could—in effect—appropriate much of the world’s intangible wealth for themselves?

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