From Swords to Ploughshares
Elgar Law and Entrepreneurship series
Edited by Lateef Mtima
Chapter 11: Accentuate the positive, eliminate the negative: Intellectual property social justice and best practices for entrepreneurial economic development
Whether the modern-international intellectual property regime promotes innovation and economic progress in developing countries is passionately contested from differing perspectives of the ideological divide. It is relatively uncontroversial that every country that has achieved a developed industrial economy did so by free riding on the intellectual property of citizens of more developed countries. Lamentably, these same acts, by currently developing nations, are now castigated as intellectual property piracy because global norms of intellectual property have shifted dramatically in the past 50 years. One of the effects of the World Trade Organization (WTO) and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) on developing economies was to effectively close off the legal unlicensed uses of technology as one possible avenue to economic development. Most recently, an equally important, if not more important factor has been the increased use of bilateral free-trade agreements, so-called TRIPS plus agreements, between developed and developing countries which further limit a developing country’s discretion in creating domestic pro-development intellectual property policies and in balancing competing national interests in fiscal and other public policies. At best, it is debatable whether developing countries, especially the least developed countries (LDCs), received any benefit from the Faustian bargain of trading enforceable domestic intellectual property law and policies for a vague, unenforceable promise of technology transfer from the most developed countries.
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