For the first time, the United States Trade Representative is accepting public comments on the Special 301 Review process, the policy tool through which they pressure other countries to raise their intellectual property rights. Comments are due tomorrow, so check out Public Knowledge’s action alert page. My comments are below.

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Dear Ms. Groves,

I write to you today as an American student, creator and someone who cares deeply about the developing world and its future prosperity. Like you, I believe proper intellectual property policies are essential to a well functioning economy and society. However, I have strong disagreement with the ways the USTR has traditionally gone about influencing the intellectual property rights in countries around the world. While public comments are a laudable first step – and one for which I am grateful to have the opportunity – substantive changes to the actual Special 301 recommendations should be made, as well.

The continuation of American economic success is dependent on strong trading partners. This has long been the logic behind pressuring foreign countries to increase their levels of intellectual property rights. Intellectual property, though, is not a unidirectional instrument. As Professor Michael Heller explains in his book, Gridlock Economy, government granted monopolies such as copyright and patents are most effective when properly calibrated – overshooting this point can lead to wrecked markets, stagnate innovation and dangerous threats to human life. Especially as we emerge from the economic crisis, America needs countries around the world to create innovative new products and services to meet the needs of American consumers and businesses. Anti-competitive, monopoly rights make it harder for developing countries to gain access to the most valuable technologies needed for growth. By limiting the capabilities of foreign firms, the Special 301 Review has, to the detriment of the United States, served to limited the growth of the global economic pie.

Forcing more restrictions upon other countries through always stronger intellectual property is also morally suspect. As Siddharth Sharma and Antara Dutta have shown in relation to India, stronger intellectual property laws in the developing world will transfer rents from poor countries to rich ones, a process exacerbated by the small absolute market size of emerging markets which do not provide the incentives to change the direction of research and development expenditure. By promoting biological patents, as well, the USTR is limiting the ability of small-scale farmers to innovate – something they have always done by cross-breeding and selecting seeds.

This harm to the developing world is also deeply hypocritical. American copyright law gives considerable breadth to consumers through fair use provisions, but Special 301 Reviews have tried to limit other countries limitations and exceptions. This hypocrisy simply sustains anti-American fervor, something this country cannot afford to do.

Intellectual property rights are not simply the purvey of multi-billion dollar corporations. They affect students, farmers and entrepreneurs around the world, oftentimes whose interests are not met by current USTR policy. We should encourage governments to find efficient, not strong, intellectual property policies so that these government granted monopolies can play the role they are supposed to: promote creativity and innovation.

Sincerely,

Kevin Donovan