Emily Xiang is an IPilogue Writer, a Senior Fellow with the IP Innovation Clinic, and a 3L JD Candidate at Osgoode Hall Law School.
Is technology’s rapid rise really a great equalizer for improving social welfare globally?
Professor Ruth L. Okediji is the Jeremiah Smith Jr. Professor of Law at Harvard Law School, where she teaches contracts, international IP, patents, copyright, and courses on Biblical Law. She is also the Co-Director of Harvard University’s Berkman Klein Center for Internet & Society. Her research and scholarship focus on examining innovation policy, the digital economy, and global knowledge governance. On September 29th, students and staff at Osgoode Hall Law School were honoured to welcome Professor Okediji in person at Osgoode, where she delivered a lecture on ‘The Paradox of Intellectual Property Injustice’.
The paradox is outlined as followed: while the existence of intellectual property (IP) protection is often justified by its contributions to improving human welfare (such as incentivizing innovators to create public goods), the benefits of technological improvements protected by these same systems are, in reality, not, experienced equally. . Legal regimes, including the IP system, often work to facilitate and increase global inequality by accruing wealth for their holders in the global north. However, this system often decreases the value of labour and unilaterally defines protectable subject matter based on imperialist norms.
In the tech sector, “skill-biased” advancements increasingly reduce opportunities for low-skilled workers, while elevating the productivity and earnings of high-skilled workers. Increasing prices of technology have only served to further disparities in access and skill development. The evolution of artificial intelligence (AI) systems, along with the effects of the recent pandemic, have also played significant roles in displacing human labourers. In terms of overall welfare, IP injustice is almost exclusively felt from the bottom-up.
In her lecture, Professor Okediji briefly charted the history of technological imperialism, and highlighted the structural, demographic, geographic, and cultural inequalities that arise from the modern IP regime. IP protection may no longer be said to primarily generate rewards and incentives for creativity and innovation. Instead, the structure of the modern IP system lends itself to be used as a vehicle to accumulate wealth and investment for the already affluent. Individuals and companies commonly engage in the strategic purchasing of critical blocking patent portfolios. For example, the rise of patent trolls, who litigate cheaply-bought patents, use the IP system as a legal weapon. Moreover, damage demands in litigation cases involving IP are rising. In 2021, a federal jury in Texas ordered Intel to pay an astonishing $2.18 billion USD to VLSI Technology for patent infringement relating to chip-making technology – one of the highest ever patent damage awards in the US. As modern IP regimes continue to tend towards serving purely economic interests, one cannot help but concede to the significant role that the modern IP system plays in perpetuating economic inequality.
The global IP system is also ill-suited for the needs of developing economies. Not only is it inherently embedded in colonial traditions, even modern agreements such as TRIPS that seek to tie IP protection with trade policy effectively coerce developing nations into accepting stronger IP standards that are ill-suited to their needs. . Formal IP protection requirements such as standards of fixation, originality/novelty, individual ownership, or limited terms of protection, are all deeply rooted in Western ideals and norms, and often preclude valuable conceptions of innovation and creativity from Black and Indigenous populations in particular.
Emerging scholarship increasingly demonstrates how inequality is embedded in the very foundations of IP law. In considering proposals for doctrinal reform in order to address these inequalities, Professor Okediji emphasizes the need to thoroughly explore related institutional and technological trade-offs, and advocates for radical transformation. Exceptions to international IP standards, enforcing mandatory licensing provisions, or speaking about “access” as the primary measure of equality may no longer be enough. Instead, we should focus on engendering educational reform in law schools, boosting literacy, improving the quality of education in marginalized communities, or developing and ameliorating community healthcare systems. Just as the problem is deep-rooted, the solution must be as well.