The International Enclosure Movement

Abstract

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and they as a result have also lost their ability to respond to domestic crises within their borders. The crisis that hitherto has received the widest international attention concerns the lack of ability by less developed countries to combat HIV/AIDS, malaria, and tuberculosis. To respond to these crises and to mitigate the adverse impact of the TRIPs Agreement, WTO members agreed during the Hong Kong Ministerial to amend the Agreement to allow member states with insufficient or no manufacturing capacity to import generic versions of on-patent pharmaceuticals. The proposed amendment marked the first time the WTO agreed to amend one of its core agreements. If adopted, the amendment would make permanent the temporary waivers granted by the General Council in August 2003. Using the access-to-medicines problem in less developed countries, this article illustrates the complexity of decisions that countries need to make at the national level and the complex, symbiotic relationship of the different types of factors that inhibit access to medicines. It then traces the development of the international enclosure movement and shows how the international intellectual property system was originally designed to preserve the autonomy of countries to devise their own intellectual property policies. Focusing on the developments from the August 2003 decision to the recently proposed article 31bis of the TRIPs Agreement, this article further illustrates the danger of the international enclosure movement, in particular how countries failed to reclaim their lost policy space once that space has been enclosed. The article concludes with suggestions on how countries can reform the international intellectual property system to preserve the autonomy needed to tailor policies to local conditions and how less developed countries can reclaim their lost policy space to facilitate greater access to essential medicines. In designing these suggestions, the article focuses on three main attributes of the international enclosure movement: (1) the power asymmetry between developed and less developed countries; (2) the incentive-investment divide between national and foreign intellectual property policies; and (3) the globalization of intellectual property rights.

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