The challenge of IP theft in WTO law: time to restore faith in the multilateral trading system
Matthias Bauer and Philip Stevens / Dec 2018
Trade tensions between the US and China continue to escalate and the World Trade Organisation (WTO), the global forum of the management of trade rules and disputes, seems powerless to stop them.
The WTO’s multilateral, rules-based trading system has underpinned huge increases in global prosperity since the 1960s. But shortcomings in investment rules and enforcement mean WTO reform is now top of the G20, US and EU agenda.
Much of the drama stems from US accusations that the WTO has failed to hold China to account for not opening up its economy as promised when it joined the body in 2001. No reform, says the US President, could see his country withdraw from the WTO.
The US is seriously concerned about China’s attitude to intellectual property (IP) rights. The Trump administration claims Chinese theft of American companies’ proprietary knowledge, through cyberattacks, counterfeiting, online piracy and forced technology transfer from investing companies. After a seven-month investigation into China's intellectual property theft, the United States Trade Representative (USTR) found that "Chinese theft of American IP currently costs between $225 billion and $600 billion annually."
The US is right: intellectual property is vital to the modern economy. Trade used to be all about moving physical goods from their point of manufacture to customers in different countries. Today, it is increasingly about “intangible” products and services, based on research and development efforts, brands, and patented or licensed technology. Much of modern international trade and investment is driven by human know-how, knowledge, creativity and innovation.
The WTO has accelerated this globalisation of knowledge-based industries thanks to its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), ratified in 1994. TRIPS requires all WTO members to institute basic laws to protect IP. As recently as the 1980s, many countries did not even grant patents – unsustainable given the era’s rapid pace of globalisation and technological development.
The creation and harmonisation of basic global IP standards under TRIPS has been transformative for developing countries in particular. Under TRIPS, more countries have benefited from the integration of domestic companies into global value chains, through which modern products and services are designed, manufactured and marketed across many countries. China, Singapore and Korea are notable examples. These global value chains have created cheaper consumer goods and reduced poverty by helping to integrate developing countries into the global economy.
According to the World Intellectual Property Organization (WIPO), one-third of the value of manufactured goods sold globally ($5.9tn), comes from intangible capital, underlining the importance of IP to today’s global economy. Outside of China, IP problems abound. Counterfeit and pirated goods account for 2.5% of global trade. Rights holders are often unable to uphold their IP rights in local courts and many countries have yet to fully upgrade their domestic IP laws in line with their treaty obligations.
Meanwhile, the text of TRIPS has not had a meaningful update since its inception in the 1980s, and could benefit from updates to take account of developments in new technologies, particularly in the biotechnology and digital sectors.
Existing shortcomings have compounded the multilateral trading system’s problems. As a result, knowledge-exporting countries increasingly look outside the WTO to achieve their trade objectives. Bilateral Free Trade Agreements (FTAs) and regional deals (the NAFTA replacement being a current example) have allowed like-minded countries to modernise and update trade and investment rules, free from the constraints of a unanimous vote by 164 countries. But this is fragmenting the international trading system and limiting the opportunities for countries outside these deals.
At the November G20 summit and October conference on WTO reform in Ottowa, leaders focused on the mechanics of dispute resolution and enforcement. These are important to restoring faith in the WTO. But in the longer term the WTO needs to ensure the intellectual property rules that govern trade in knowledge-intensive intangible capital are strong and well enforced. If needed, countries willing to move faster on these reforms could form coalitions under the auspices of the WTO.
In December, Beijing announced a number of new punishments for domestic IP infringers. It suggests that China’s officials are beginning to understand the importance of IP for smooth trade and relations. But to ensure modern trade and investment can continue on non-discriminatory terms for everyone, the WTO should put IP first.