Often formulating a legal policy response to a problem starts with finding the correct vocabulary. While complex economics, political, and sociological crises do not get managed with magic words, failure to give a name to a problem makes solutions elusive. In the case of international intellectual property, the problem of overly expansive intellectual property rights, sometimes adopted by nation states under trade and finance pressures, is seen solely as a solution to the ubiquity of piracy and theft of economic value. Values of access and commons management offer some countermeasures to broad property rights. But these responses sometimes feel piecemeal and less than systematic.
Enter Professor Sam Halabi, a scholar and teacher of international health law at University of Tulsa Law School, shifting to University of Missouri, Columbia Law School in January 2017. His recent article in the Tulane Law Review is one I like a lot, and I hope others active in international intellectual property law and health policy do as well. Professor Halabi’s contributions are conceptual and linguistic. International Intellectual Property Shelters, although with unfortunate resonances of “tax shelters,” describes pockets created by treaties and national law of exceptions to strong intellectual property rights. These pockets permit access to medicines, promotion of biodiversity, regulation of neonatal care, and control of tobacco—each threatened by the rampant spread of intellectual property rights. Upon this neologism, Professor Halabi delineates an established international intellectual regime that governs and limits intellectual property rights. His article not only informs us about the key features of this regime and the legal, political, and economic mechanisms that drive it.
Professor Halabi’s article defines a unique and important niche in the field of international law. At the intersection of intellectual property and health law, his work illustrates how institutions are designed at the national and global levels to regulate intellectual property rights for the public interest. What the article reveals is a rich array of transnational regulations, mediated through treaties that support national legislation to limit intellectual property rights in the arena of health and safety. The Tulane piece provides several examples, including the 2002 Doha Declaration on Health and Safety, proposed treaty on medical research and innovation, the WHO’s influenza pandemic preparedness framework, and international codes for the marketing of breakfast. His two other examples on biodiversity and tobacco control illustrate for our purposes the tone and structure of his arguments.
The United Nations Convention on Biodiversity, Professor Halabi reminds us, has created an international framework that has served to create national legislation regulating patent rights in agriculture and genetic resources. These regulations promote regional diversity in agricultural products through treaties that allow for the saving and reuse of genetically modified seeds by farmers. In addition, they serve to allow multinational corporations to make use of traditional agricultural knowledge local to the community and share the benefits of commercialization with subnational constituencies, such as indigenous communities, farmers, and holders of traditional knowledge. Such benefit sharing serves to direct profits from exploitation of traditional knowledge back to the national economy from multinationals.
Tobacco control has also been the subject of an emerging international regulatory regime. This regime is marred by economic and legal tensions between tobacco companies seeking new markets for their products and national governments desiring to stem the adverse health consequences from tobacco consumption. While the agreements over biodiversity center on patent rights, limitations on trademark rights and tobacco advertising are the basis for the international regulatory system for tobacco. The development of this system, however, has been far from smooth as tobacco companies challenge the restrictions on their trademarks, through such requirements as plain packaging, by alleging violations of bilateral investment treaties with national governments. So far, the efforts of the companies have not been successful, and regulations on tobacco for the goals of health and safety serve as another example of an international intellectual property shelter regulating rights for the public interest.
As Professor Halabi describes, these shelters “regulate intellectual property by creating conditions for access to patentable subject matter, elimination or substantially modifying trademarks at their core level (i.e. by source identification), and redistributing the benefits of intellectual property that either draw from the resources of low- and middle-income countries or disproportionately affect their welfare, or both.” (P. 964.) He concludes, “international intellectual property shelters mediate the creation, flow, and concentration of global wealth between wealthy and low- or middle-income countries.” (P. 971.)
Professor Halabi has identified an important set of developments in international intellectual property law. He has also clearly delineated how these developments are implemented in practice, both at the transnational level through treaty regimes and at the national level through legislation. This article should receive attention from a range of scholars, especially those working in international intellectual property law and health law. Professor Halabi’s work also has much to offer for policymakers and those interested in institutional design of regulations. I look forward to seeing how Professor Halabi develops this line of research, especially as he moves from article to book. The end product should present a much-needed normative and political framework for understanding international intellectual property. For now, however, this article provides much fodder for debate among scholars and policymakers.