International Copyright’s Exclusion of the Global South

Mary Aertker

Vol. 43 Associate Editor

Historically, scholars have examined copyright as a purely legal doctrine, devoid of racial and post-colonial undertones.[1] Only recently have scholars begun to examine the shortcomings of international copyright frameworks and impacts on systemic inequalities.[2] This post will critically examine the current governing international copyright regime—the TRIPS Agreement—and explore the harmful effects of its incompatibility with systems in place in the Global South.[3] Traditional knowledge, or local community knowledge and practices that are owned communally and transmitted orally in the Global South,[4] is often created by large and diffused communities; legal conceptions of Western knowledge, by contrast, hinge on traceability back to an identifiable individual.[5] Existing protections within the international copyright regime provide protection of limited duration, running counter to the necessary perennial component of an oral and collective amalgamation of knowledge.[6] For example, U.S. copyright law favors song publishers over artists, an idea which has bled into the international landscape, as U.S. copyright laws have strong international implications.[7] Therefore, copyright law, in favoring the publisher over other contributors—or in favoring at all—is simply incompatible with collective ownership, where no single contributor can be said to own a piece of intellectual property more than another.[8] Additionally, many traditional forms of music embody elements of an oral tradition, and international copyright law secures no protection for the purely oral.[9] Finally, much of the traditional knowledge in the Global South is so old that it has been deemed within the public domain.[10] Under modern international copyright standards, as soon as an area is researched and the researcher publishes his findings, the information (formerly in the public domain) becomes the researcher’s copyright. The community or communities to whom such information can be originally attributed must then seek permission from the researchers, who are typically from the United States or Europe, to use the very information they created—even if the information was appropriated.[11] The 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) codifies the current intellectual property regime.[12] Though it frames itself as a safeguarding mechanism for the fair trade of intellectual property,[13] in practice, it imposes a Western ideology of intellectual property on the rest of the world.[14] TRIPS stipulates that World Trade Organization (WTO) member states may adopt higher standards of intellectual property than those enumerated in the agreement itself. This grant of power has resulted in the United States’ creation of “TRIPS-plus” bilateral treaties in which it uses its relative economic power to compel developing countries to adopt intellectual property rules that mirror its own. In turn, opportunities for countries to invoke exceptions to Western IP law that are technically permissible in multilateral agreements are limited.[15] Thus, TRIPS serves as a vehicle of coercion insofar as protection for developing countries is conditioned upon membership and acquiescence to Western conceptions of intellectual property—even when they are materially incompatible with local traditions or even illegal under local laws.[16] Although TRIPS implies that developing countries are only required to undertake commitments to the extent possible with their own institutional capacities,[17] such flexibility is not a practicable option.[18] Exercising such legally permitted flexibility threatens developing countries with WTO sanctions.[19] In addition to the flexibility-fallacy, TRIPS fails, in line with the broader trend of non-Western exclusion, to offer any sort of protection for traditional knowledge.[20] Since such knowledge lacks the requisite international protection, TRIPS provides the West with a legal framework for the appropriation of intellectual property from the Global South.[21] Software licensing in the university context illuminates one way in which modern copyright laws benefit the West at the expense of the South. Ownership of proprietary software depends on terms set by the owning corporation,[22] and since Microsoft has a virtual monopoly on the global software industry, opportunities for negotiation of such terms are all but non-existent.[23] In the university context, licensing fees are determined by the number of desks at the institution.[24] This per desk licensing cost does not account for the institution’s funding;[25] that is to say that Microsoft’s licensing fees at the substantially-endowed University of Michigan[26] are the same as at the University of Nairobi, the top university in Kenya (and ranked in the top ten in Africa) with a current endowment of zero dollars.[27] Furthermore, international copyright law staunchly protects source codes by proprietary-based software companies.[28] In the Microsoft context, the corporation does not permit any improvements or changes whatsoever to the source code.[29] If copyright law instead permitted modifications and integrations of source codes, the Global South would benefit heavily from the ability to tailor software needs to their available infrastructure and anticipated use, thus bolstering computer innovation and helping develop stronger local education systems.[30] In sum, a reimagining of TRIPS that better accounts for traditional notions of ownership and the need for exercisable flexibility could help spur development in the Global South and actually protect copyright interests on a global scale—not just in the United States and Europe.

[1] See K.J. Greene, Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, 16 J. Am. U. Gender, Soc. Pol’y & L. 365, 369 (2008); Philip G Altbach, The Subtle Inequalities of Copyright, 7 J. Intell. Prop. Rts. 50, 54 (2002) (noting that “Copyright, after all, is a moral and ideological concept as well as a legal and economic one. There is no recognition that the legacy of colonialism and the power of the multinationals has, to a significant extent, created the currently highly unequal world knowledge systems.”). [2] Id. [3] For an explanation of the term “Global South,” see Anne Garland Maher, What/Where is the Global South, Univ. Va. Glob. S. Studs., https://globalsouthstudies.as.virginia.edu/what-is-global-south (last visited Dec. 14, 2021) (explaining that the term […] “has traditionally been used within intergovernmental development organizations –– primarily those that originated in the Non-Aligned Movement­ ­–– to refer to economically disadvantaged nation-states and as a post-cold war alternative to ‘Third World.’ However, in recent years and within a variety of fields, the Global South is employed in a post-national sense to address spaces and peoples negatively impacted by contemporary capitalist globalization.”). [4] See Greene, supra note 1, at 383. [5] See Daniel J. Gervais, Internationalization of Intellectual Property: New Challenges from the Very Old and Very New, 12 Fordham Intell. Prop. Media & Ent. L.J. 929, 957–58 (2002). [6] Id. [7] Greene, supra note 1, at 355. [8] See generally id. [9] See id. [10] Id. [11] Henry M. Chakava, International Copyright and Africa: The Unequal Exchange, in Copyright and Development: Inequality in the Information Age 22, 20 (Philip G. Altbach ed., 1995). [12] See generally Dr. Alpana Roy, Copyright: A Colonial Doctrine in a Postcolonial Age, 26 Copyright Rep. 112, 112 (2008). [13] See TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), art. 41 [hereinafter TRIPS Agreement]. [14] Roy, supra note 12, at 123. [15] See Chakava, supra note 11, at 20; Marci A. Hamilton, The TRIPS Agreement: Imperialistic, Outdated, and Overprotective, 29 Vand. J. Transnat’l L. 613, 614 (1996) (arguing that TRIPS was designed to establish international copyright law “in the image of Western copyright law”); Alexander W. Koff, Study on the Economic Impact of “TRIPS-Plus” Free Trade Agreements 63 (2011) (using econometric analysis to show that overall trade with the U.S. correlates positively with the adoption of U.S.-centric intellectual property law). [16] Ruth L. Gana, Has Creativity Died in the Third World – Some Implications of the Internationalization of Intellectual Property, 24 Denv. J. Int’l L. & Pol’y 109, 112 (1995). [17] See WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization art. XI ¶ 2, Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994) (stating that WTO members recognized by the United Nations as “least-developed countries . . . will only be required to undertake commitments and concessions to the extent consistent with their individual development, financial and trade needs or their administrative and institutional capacities,” in turn applying to WTO members in the TRIPS context). [18] Olufunmilayo Arewa, TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property Frameworks, 10 Marq. Intell. Prop. L. Rev. 155, 167 (2006). [19] Peter Drahos, Developing Countries and International Intellectual Property Standard-Setting, 5 J. World Intell. Prop. 765, 787 (2005). [20] Arewa, supra note 18, at 163. [21] Id. at 167. [22] Roy, supra note 12, at 130. [23] Id. But see Microsoft Settles 3,265 Software Piracy Cases in US and Abroad, Microsoft News Ctr. (July 9, 2013), https://news.microsoft.com/2013/07/09/microsoft-settles-3265-software-piracy-cases-in-us-and-abroad (highlighting the degree of piracy risk for the company, supporting a need for firm software terms and regulations). [24] Id. [25] Id. [26] See Don Jordan, Endowment Shows Strong Returns Amid Financial-Market Growth, Univ. Mich. Univ. Rec. (Oct. 21, 2021), https://record.umich.edu/articles/endowment-shows-strong-returns-amid-financial-market-growth (reporting an endowment of $17 billion in 2021). [27] See UniRank, Top 200 Universities in Africa: 2021 African University Ranking, https://www.4icu.org/top-universities-africa (last visited Dec. 13, 2021); Lynet Igadwah, PROF KIAMA: Why University of Nairobi Has to Reform or Perish, Bus. Daily Africa (July 16, 2021), https://www.businessdailyafrica.com/bd/corporate/prof-kiama-why-university-of-nairobi-reform-or-perish-3474678. [28] Roy, supra note 12, at 131. [29] Id. [30] See Alan Story, Don’t Ignore Copyright, the “Sleeping Giant” on the TRIPS and International Educational Agenda, in Global Intellectual Property Rights 125, 135–36 (Drahos and Mayne eds., 2002). The views expressed in this post represent the views of the post’s author only.