The Counterbalance: Nick Shaxson – The quadruple tax system of patent monopolies

This is a very long, but enjoyable to read article covering a lot of terrain concerning monopolies, tax, intellectual property, the free trade myth, and TRIPS. The perfect weekend read.

Counterbalance is a newsletter from a new anti-monopoly organisation, the Balanced Economy Project.

Cross-posted from The Counterbalance

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Introduction: offshore monopoly capitalism

A few years ago, economists who followed these things noticed a weird thing happening in Ireland: a staggering 26 percent jump in the size of its economy in 2015, and a bunch of other indicators going haywire1. Nothing stranger than usual was happening on the streets of Dublin – so what the hell was going on?

After a bit of digging, the answer became clear. Ireland, a corporate tax haven, had changed its tax rules, encouraging Apple and a bunch of other multinationals to shift their corporate structures and bring a trove of “intellectual property” such as patents, brands and trade secrets into their affiliates in Ireland. An estimated 250 billion Euros’ worth of these “intangible assets” had suddenly whooshed in, though it hardly touched the sides – except for perhaps helping a handful of Irish tax advisors to upgrade their Porsches. It made the Irish national statistics a laughing stock: the economist Paul Krugman dubbed this tax haven activity “Leprechaun Economics.” (We’ll explain more about what IP is, and why they put it into tax havens, below.)

We now live in a global economy which transfers resources on a vast scale from ordinary people to billionaires, from the productive economy to the financial sector, from the public to the private sectors, in ways that both redistribute wealth upwards and reduce overall prosperity. They can do this, in particular, by monopolising markets and dodging taxes. In reality, the so-called “free” market increasingly looks like a system of offshore monopoly capitalism2. Intellectual property (IP) – essentially, the business of government-enforced monopolies over ideas and inventions – sits at the core of this system.

IP has become a lifeblood of our modern global economy, sewn into its fabric via a nest of legal rules and heavyweight political protection. These monopolies over patents, copyrights and trademarks constitute a hidden private tax system levied by private interests over wider populations. Every time we take a pill, binge on a Netflix series, eat a thigh from a mass-produced chicken, watch a football game, or speak on an iPhone, we’re plugging into an invisible superstructure of intellectual property rights suffused with excessive market power, which increases the amount we pay for this thing we are consuming, far above what any open and fair market would allow.

There is a role to play for patents in a modern economy, but the system has been rigged. In an earlier age, for instance, when government policies in many countries struck a better balance between private property rights and the interests of citizens, there was a surge of new wonder drugs under development. The rise of private power to exert choke holds over markets has tightened the innovation tap.

Tax, freedom and monopoly power

We’re often told that tax is bad: that the less tax we pay, the freer we are. This ideology has helped push official levels of corporate and personal income taxes down to very low levels. As the heiress Leona Helmsley once said, tax is for the little people. She was right. Worse, many of us pay large private taxes on top of our normal taxes, through the power that intellectual property gives to big business.

In fact, we pay four layers of these hidden private taxes for these knowledge monopolies.

First, nearly all the high-technology goods and services we consume were funded, to a large degree, by taxpayer-funded public research, which citizens ultimately pay for. The private sector typically only invests after the “entrepreneurial state,” as the economist Mariana Mazzucato puts it, has made the bold, high-risk investments. To take a recent example, it was estimated last year that $100 billion of public money has been pushed into the research and production of Covid-19 medicines.

The second layer is what Leprechaun Economics measures: the way multinational firms can park their intellectual property in tax havens to help them escape paying their taxes – free-riding on the taxes that the rest of us, in countries rich and poor, then essentially must then pay on their behalf.

The third tax is bigger. Companies routinely use these super-strength monopolising patents and trademarks to make us pay more as consumers, just as tollkeepers at key road junctions used to (and sometimes still do) shake down hapless travellers and traders passing by. According to an estimate by the US economist Dean Baker, Americans paid $315 billion more in 2018 for prescription drugs than they would have in a competitive market with the patent protections relaxed. Add in software, pesticides, medical equipment and all the rest, and he estimates the cost at $1 trillion annually, over $3,000 in monopoly taxes for each American citizen, each year.

There is a fourth tax on top of this, which is the result of this monopolistic system reducing economic growth and stunting innovation and economic dynamism. This happens through various economy-wide effects. For example, if monopolistic companies generally set their prices far above what an open market would warrant, people buy less, firms produce less, and they demand less labour. This not only pushes wages down – but it also shrinks the economy. Or when fierce patent rules shift money from poor people, who consume a high share of their income, to rich people, who consume a lower share, then consumption and economic activity shrinks. Or, perhaps most pertinent for climate change or Covid drugs, these restrictive systems smother innovation.

Monopolising patents are used routinely to block new technologies and potential rivals. Thickets of multiple, obscure, overlapping patents often surround profitable products, any one of which can trip up others trying to enter the market or build upon earlier technologies. A company can easily refuse to licence others who they fear might develop the understanding and know-how that might allow them to become rivals. The spread of innovation is slowed – whether that shows up in access to vaccines and medicines or being stuck with old, off-patent climate technologies when we need the whole planet to be using cutting edge solutions as fast as possible.

In short, the first three private taxes redistribute the pie unfavourably; the fourth shrinks the pie.3 The rigged system stifles innovation, worsens inequality, threatens jobs, undermines democracy and harms the planet.

A new wind blows

The global system of intellectual property, underpinned and enforced by global trade rules, has at its heart a system called TRIPS (Trade-Related Aspects of Intellectual Property Rights). It was one of the foundational agreements in the newly formed World Trade Organisation in 1995, turning the patchwork of intellectual property rules which existed up to that point into a single, binding piece of international trade law.

TRIPS is a billionaire factory that forces countries around the world to accept rules that allow multinationals to barricade their goods and services with ferocious legal fortresses, to exclude anyone else from using their inventions, for exceptionally long periods.

Why do countries accept this bitter medicine? Below, we look at the history of TRIPS to explain. But right now, change seems possible.

TRIPS received a shocking jolt last year when the US Trade Representative Katherine Tai announced in May that her administration would support a waiver of the IP protections for Covid vaccines. This followed similar demands from a range of other countries, from scientists, from medical experts and from a wide spectrum of campaigners, for an exemption from TRIPS.

For decades, the United States had led a granite-like global resistance to any weakening of TRIPS, so experienced activists were stunned by Tai’s words. As one of them, Cory Doctorow, said: “I’ve been in global IP circles for nearly twenty years now, and I’ve been in rooms with the US trade representative many times. I have never seen a [US trade representative] – let alone the head of the USTR – make a statement that was in the same galaxy as this one.”

Almost immediately, a chorus of lobbyists for Big Pharma companies and for the broader global IP regime – including the software monopolist Bill Gates, a multitude of commercial lobby groups, and the then German leader Angela Merkel — came out of the woodwork, to attack the US heresy. Big pharma firms won’t invest if their patents aren’t safe and strong, they cried. These big firms have the vaccine roll-out all under control: we must trust them to do a good job! The IP waiver won’t work because nobody else can ramp up production like it’s needed! Bad factories will produce dodgy vaccines! Don’t mess with the free market! We will become uncompetitive if we relax the rules! It’s a slippery slope to Marxism! And so on.

The hue and cry was hardly surprising, in light of the $140 billion in shareholder dividends and stock buybacks since 2011 – just for one pharmaceutical company, Pfizer.4 Pfizer generated $36.8 billion sales for its vaccine this year, and expects to rake in another $32 billion next year. And the mRNA technology behind Pfizer’s jab, largely made with public resources, could revolutionise medical technology, with potential for HIV, Malaria and even cancer vaccines. Pfizer would love to dominate this giant money-spinner technology for the foreseeable future.

Monopoly money such as this is, of course, enough to buy the world’s finest lobbyists and politicians: a story as old as economics. As Adam Smith said:

“the monopoly which our manufacturers have obtained . . . has so much increased the number of some particular tribes of them, that, like an overgrown standing army, they have become formidable to the government, and upon many occasions intimidate the legislature.”

No matter that every one of the arguments against a Covid waiver is bogus, the smokescreens put out by this ‘overgrown standing army’ has been enormously effective. Tai’s efforts to change the story hit heavy political waters, almost as soon as she uttered the words. And indeed, over the course of the last year, the corporate lobbyists managed to water the waiver proposals down to until there is basically nothing left.

Those who have been campaigning against the system for decades, who have never been able to get traction on this Teflon issue, may feel disheartened at the pushback. Yet now is not the time for despair, for at last we see a chance, an opening, for true change. This rigged system, which has literally killed millions of people and impoverished hundreds of millions of others, has now been exposed and is still vulnerable.

Policies on international trade or tax change only very slowly, but with immense momentum. Once a new direction is set, it is very hard to deflect. Katherine Tai’s words are less important in themselves, than in the fact that they reflect a deep and enduring sea change in the global public mood, which has steadily in recent years been turning against the outdated old ideologies of low taxes, weak regulations, lax enforcement, and strong protections for IP monopolies.

In an earlier age, millions of people in rich countries felt it was necessary to protect “their” big patent-owning companies, hoping there would be some ‘trickle down’ to them – while sweeping under the carpet the distasteful thought that their champions were exploiting people in lower-income countries. Yet today, ever more people in rich nations are coming around to the idea that “this hurts us too” – that the battle isn’t one that pits rich countries and their home multinationals, against poorer countries to be exploited, but instead is a battle pitting the 99.9 percent majorities in countries rich and poor, against capital-owning, offshore-diving, law-escaping, unaccountable, monopolising global élites.

Covid, and the climate crisis, underline this all too clearly. The longer we take to roll vaccines out around the world, the higher the chance that a new super-strain of Covid will emerge that overcomes our existing vaccine defences, and we are all forced into devastating lockdowns again, amid a new wave of deaths. A Covid vaccine waiver would have been by far the fastest, best and cheapest way to do this. The International Chamber of Commerce, hardly a left wing organisation, has estimated that a failure to roll out Covid vaccines around the world could cost over $9 trillion, with rich countries taking the biggest hit. The costs of delaying technology to tackle climate change will ultimately be bigger.

We must use this platform to go far beyond Covid, to take aim at the monopolists’ charter of TRIPS itself. On climate change, rich countries in many cases offshored their carbon emissions to lower-income countries in their supply chains: now we are pushing them to make the expensive carbon transition too, while also forcing them to pay rich-country multinationals for the IP for climate technology, via the private quadruple tax.

Adding to the hypocrisy, lower-income countries were told that their trade protections were unfair, while the trade protections via monopolising IP protections were inviolable. From climate technology, to software, to genetically modified corn, to computer algorithms, the money drain away from main street and high streets to Wall Street and the City of London is immense. This upwards drain has a geographical dimension too, as money is sucked out of poorer often rural areas and already blighted urban zones, and delivering it to a small section of the population largely based in rich parts of big cities, overseas, and offshore. No wonder people are angry.

There is an opening here, which we haven’t seen for a very long time. It is time to get our collective foot in this crack in the door, organise, and push hard.

So, what is intellectual property anyway?

If you spend your time and money inventing a brilliant machine to pick cranberries more efficiently, your government might decide that you deserve some legal protection – a patent – to stop the next person taking your invention, getting rich and cutting you out of the market.

Patents, copyright and other forms of intellectual property are, in principle, necessary. But saying this is like saying prisons are necessary. They are, but that’s not the big question. The big questions are: for what reasons should we send people to prison, and in each case, what kind of prison, and for how long? And when should we use non-prison alternatives, which often work better?

Likewise, with IP. How long should your protection for your cranberry-picking machine last? A year? Seven years? Seventy years? A thousand years? What should be the penalty for infringement? A lettuce-leaf wrist-slap? A fine? Prison? The Electric Chair? Are there other ways to induce you to invent your machine?

It’s all about degree, and balance. The core problem is that monopolists and their allies have violently tilted global IP rules, allowing a small class of people to, as one account puts it, “just lie in a hammock and come up with ideas, and other people will pay you rent on your ideas.” Or, more often, to buy other people’s (often public-funded) ideas, enclose them in IP fortresses, and then lie in hammocks and charge rent on them.

Why do they put IP into tax havens?

Why do multinationals put their patents, trademarks and so on into tax havens? The basics are actually pretty simple, and commonly use a technique called ‘transfer pricing,’ to escape tax.

Imagine an American tech giant, TechCo, has designed some new software, which it knows will make billions in profits, worldwide. So TechCo sets up a shell company called HavenCo, set up in a tax haven like Bermuda or Switzerland. HavenCo owns the patent for that software, and employs just one part-time person to collect the mail and sweep the floor. HavenCo then charges all of the multinational’s other affiliates in other non-tax haven countries billions in royalty fees, for the privilege of using the patent nominally located in that tiny office.

HavenCo in zero-tax Bermuda receives huge royalty fees from those other affiliates elsewhere, and so with minimal costs it reaps huge profits – but because it is based in a tax haven, the tax rate on those profits is zero, so there is no tax bill there.

Meanwhile, those other affiliates of TechCo in the high-tax countries like Germany or Bangladesh or Tanzania or Ecuador can record those royalty fees that flow outwards to HavenCo as costs, thus reducing their profits, and thus cutting the tax payments of those affiliates in those countries – perhaps down to near-zero or even zero.

In short, profits have been shifted out of the high-tax countries, reducing tax payments there, and into the tax haven, where they pay zero tax. Note that nothing productive has happened here: wealth has simply been shifted from taxpayers in a range of countries, to TechCo’s private shareholders. It is a waste of resources, and it boost inequality and stokes public anger.

International tax rules are supposed to tackle these shady practices, but they are leaky and hard to enforce. After all, what should the royalty rate be for a unique piece of business software, that is probably being updated every month and has nothing comparable anywhere else in the world? The answer to that question is, very often: the rate is whatever the multinational’s accountants say it is. Skilled tax authorities in rich countries like the United States or Germany have a hard enough time enforcing the tax rules: imagine how much harder it is for a developing country like Bangladesh, Tanzania or Ecuador.

In each country, and globally, the system not only redistributes the economic pie from poor to rich, but it also shrinks the pie, damaging economic growth, worsening inequality, harming the planet, hurting lower-income countries, worsening privacy, undermining democracy, rewarding unproductive rent-seeking, provoking political anger, and more.

Not only that, though. This game hurts not only lower-income countries: it also hurts the country where the multinational has its headquarters: in this case, the United States.

History is littered with these transfer pricing shenanigans. One example involves the media companies Viacom and CBS, now joined together as ViacomCBS. From 2002 these firms shifted their television IP rights through a daisy chain of corporate tax havens from Curaçao, the Netherlands, Bermuda, Luxembourg and most recently into the United Kingdom. The strangest part of this is that the UK had changed its tax rules so as to set itself up as more of a corporate tax haven, in order to attract exactly this kind of activity – yet, according to a detailed investigation by the Dutch organisation SOMO, the UK will lose $1.2 billion in tax revenues from the shifting of IP rights into the UK.

Why would the UK subject itself to such self-flagellation? UK citizens pay all these private taxes – the fruits of public investment snaffled by multinational shareholders; excessive private tolls levied for consuming these goods and services; economic shrinkage; and now these additional tax losses due to the UK attracting this IP.

The a key to this riddle is that the winners from this game are big accounting firms, big law firms, multinationals, and others who have an oversized influence in designing the UK’s tax policies.

But other answers lie in history.

The TRIPS trap: a history

Intellectual property protections have origins in systems of political patronage that are especially salient in lower-income countries today, and which sometimes get called “corruption.” In Britain, Queen Elizabeth awarded Sir Walter Raleigh, a court favourite, monopolies in cloth, tin, wine, and more. According to one account:

“The immediate goal of such arbitrary bestowals of power – a goal very much intended by the sovereign – was to atomize both the aristocracy and the people and to keep them hustling for place and pennies, in concentric circles, around the court.

The inevitable result of such arbitrary bestowals was to deprive – sometimes suddenly –many ordinary people of their ability to pursue their work, such as the manufacture of cloth or tin or playing cards, or the importing of wine. As Edward Coke put it in Parliament in 1614, ‘The monopolizer engrosseth to himself what should be free to all men.’”

In 1624 the English parliament struck a landmark blow for the people when it declared ‘royal patents’ illegal. (And the United States’ attachment to “freedom” or “Liberty” is, historically speaking, designed to check concentrations not just of autocrats, kings and public power, but also of those who would wield excessive private power.)

This second meaning of liberty came especially to the fore as western nations picked themselves up from the rubble of the Second World War, the US-led occupying powers in Germany and Japan began setting up the political and economic machinery to ensure that these two aggressor nations would not fall again into fascism and militarism. US military authorities in 1947 promulgated Law 56, aiming to eliminate from the German economy at the earliest opportunity “concentrations of economic power as exemplified, in particular, by cartels, syndicates, trusts, combines and other types of monopolistic or restrictive arrangements which would be used by Germany as instruments of political or economic aggression.”

Even before the War, though, it was well understood that monopolies were core ingredients of fascism. “The liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself,” US President Roosevelt declared in 1938, as war loomed. “That, in essence, is Fascism – ownership of Government by an individual, by a group, or by any other controlling private power.”[5]

After the War, bloodied workers in countries across the new transatlantic alliance were in no mood for compromise with their élites, and leaders around the world agreed at a meeting at Bretton Woods in to set up a remarkable, stunningly progressive system of international co-operation, with many interlocking pieces. Top income tax rates on the richest were incredibly high – between 80 and 100 percent in many countries, and public healthcare systems spread widely. Finance, and especially speculative financial flows across borders, were heavily regulated and suppressed, under the knowledge that deregulation, free financial flows, and enormous financial concentration had helped cause the crash of 1929. And, especially in the United States, monopolies were broken up and regulated heavily, to prevent domination of any sector of the economy, while in Europe, more interventionist policies such as nationalisation were more commonly used.

All these policies would be unthinkably radical today. Yet for the roughly quarter-century after the Second World War when they were implemented robustly, economic growth was higher and more broad-based than at any time in world history, before or since. That era is sometimes known as the Golden Age of Capitalism.

The emergence of the TRIPS trap

TRIPS has a particularly grubby back story to it: a tale of powerful nations using their economic power to make the world safe for their monopolists, not just against the citizens of other countries, but against their own citizens too.

This chapter of the tale begins in 1951, when Jawaharlal Nehru, India’s president, decided to build a local factory to produce the wonder drug penicillin. India got help from the World Health Organisation, which wanted to set up an international network of penicillin production and training facilities. By the mid-1950s India was already producing major quantities of the antibiotic. But the western pharmaceutical companies were unhappy: most refused to invest in Indian production, because they did not want to transfer the technology and know-how (Merck did agree to build an actual factory – though only under a set of onerous conditions for India.)

In 1955 Jonas Salk, who developed the polio vaccine, gave away the patent for free, and trained scientists around the world to boost supply. When asked who owned the patent, he was incredulous. “Well, the people, I would say. . . “could you patent the sun?” The day after his vaccine was declared a success, the administration of Republican President Dwight Eisenhower offered to share all the intellectual property with any country that requested it, including its arch-foe, the Soviet Union.

His successor, John F. Kennedy, enraged pharma firms with a memorandum on patents (pp10943) in 1963 which said that when inventions were substantially the fruit of public research, especially when it came to medical inventions, then the government should usually have worldwide rights to them, and that this research should be shared with foreign countries. Britain established a public National Research Development Corp (NRDC) to commercialise national inventions, with a mandate for the agency to hold any patents stemming from the research.

Then, in 1964, the world’s 134 poorest countries formed the G77 group, a voting bloc to advance their interests at the United Nations, just as many countries were freeing themselves from colonialism. Patent monopolies were high on the G77 agenda. By 1970, India had drafted a new patent law to replace the British colonial version, allowing patent protection for some processes such as manufacturing methods, but not for products like vaccines or foods. It limited patent protections to seven years; and it allowed “compulsory licensing” where governments could overrule patent protections.

The companies hated this post-colonial ‘heresy’ so much that the Merck CEO, John Connor, branded it “a victory for global communism”. Yet other countries followed India’s lead, weakening laws on patents and other knowledge monopolies, aiming to build up local production capacity. So when new drugs came onto the world market, India saw them introduced into the domestic market at a fraction of the world price. This laid the foundations for India’s modern pharmaceuticals industry.

The Chicago – Pfizer counterattack

The 1970s were an inauspicious time for the world’s developing countries to move. With the OPEC oil embargo and rising inflation, the Golden Age was approaching an end. New pro-corporate ideologies of “shareholder value” were fast gaining popularity, led by a small group of thinkers in Chicago, led by Milton Friedman.

But the Chicago School had a particular strand of thinking that especially favoured monopolies and concentrated corporate power, led by Robert Bork. As we have explained elsewhere, this emphasized corporate efficiency (as measured by economists) and the welfare of consumers, while airbrushing out inconvenient ideas such as power, the structure of markets, or the public interest.

These ideas spread rapidly, first in the United States, then in Europe, and with the help of the IMF, World Bank and OECD, as a “Washington Competition Consensus,” further afield.

A wave of mega-mergers between corporations unfolded, including many that would have been blocked as illegal in the Golden Age. In this environment, it was inevitable that laws to protect IP monopolies would follow the broader global trend.

In 1972, the year India’s patent law came into force, and at the start of this period of rapid ideological change, the multinationals’ counterattack began in earnest.

Pfizer’s CEO Edmund T. Pratt Jr. led the charge against the G77, with an audacious plan to gain a chokehold over global markets for agricultural products and medicines. In 1978 Pratt began assembling allies to take the fight forwards.

They shifted their focus away from the United Nations, where the G77 was dominant, into a forum where patents and knowledge monopolies had not yet featured: the immense arena of international trade. Pratt, a trade adviser for both the Democrat Jimmy Carter’s and the Republican Ronald Reagan’s administrations, was well placed to push the new agenda.

“Like the beat of a tom-tom, the message about intellectual property went out along the business networks to chambers of commerce, business councils, business committees, trade associations and business bodies,” wrote Peter Drahos and John Braithwaite in their book Information Feudalism. “Progressively, Pfizer executives who occupied key positions in strategic business organizations were able to enroll their support for a trade-based approach to intellectual property.”

In the “Tokyo Round” of trade negotiations in the late 1970s Pratt seized on a concept called “linkage,” which harnessed non-trade issues to the global trade locomotive. The negotiations were supposedly all about free trade, while patents and other knowledge monopolies are about the pretty much the opposite: letting companies sew up markets and exclude competitors, with the legal backing of the state. Yet Pratt persuaded CEOs from other parts of the knowledge economy – from software to entertainment to machinery – to join the push to help them monopolise on a global scale. They got their “linkage” – and, as the writer Alexander Zaitchik explains:

“This is why the TRIPS acronym – “Trade-Related Aspects of Intellectual Property Rights” – sounds so forced and clumsy. It was born in a shoehorn.”

The Reagan administration supported Pratt’s push, against ferocious resistance from the G77 group, led by India and Brazil. Once inside the trade negotiations, though, the United States wheeled out what would prove to be the decisive weapon: a piece of US trade law called Section 301, which one US trade representative called the “H-bomb of trade policy.” This allowed for trade retaliation against countries with ‘discriminatory’ or ‘burdensome’ policies – and because every country wanted to trade with the United States, this was a powerful weapon indeed.

The G77 solidarity did not survive the trade battering ram for very long. Brazil was the first coalition leader to buckle, agreeing to sign TRIPS in 1989 after the US imposed crippling tariffs on its imports. India followed the next year. Democrat president Bill Clinton solidified the deal, triumphantly overseeing the birth of the World Trade Organisation (WTO) in 1994, with its own TRIPS agreement. A total of 124 countries signed on – as if they had any choice.

TRIPS and the competitiveness hoax

Alongside the hard-power trade weapon, the new monopoly coalition wielded arguments to smooth their way. There was a lively public-relations push claiming that anyone who stood against the emerging rules was a rogue nation, engaged in piracy. More potently, however, they persuaded U.S. officials that, as Pratt put it, “Intellectual property rights are extremely important to the competitiveness of the US and other post-industrial economies.”

To them, and to many Americans fretting about economic decline, this sounded great. But as we explained in our recent piece, ‘Great Competitiveness Hoax’ – this agenda rests on elementary fallacies.

The way for a country to be ‘competitive,’ according to this agenda, was essentially to dangle incentives in the path of highly mobile global capital, for fear that without these lures the capital will run away to more hospitable shores, like Geneva or Singapore or the Cayman Islands. The lures were many: cut the corporate tax rates and introduce loopholes; move towards “light-touch” financial regulations; cut the budget for enforcement bodies; or relax laws on monopolies and abusive behaviour by large multinationals. And one of those lures, which Pfizer’s CEO Edmund Pratt had promoted so vociferously in the name of ‘competitiveness’, was strong protections for patents, and especially the TRIPS rules.

“Competitiveness” in this form essentially involves putting up a neon sign in the global marketplace, saying ‘Exploit Me’ – in the hope that the exploiters will visit. This is an odd formula for national development: for downgrading to suit investors, rather than upgrading to suit your population.

When you downgrade by offering goodies (such as lax financial regulation, or exploitative IP rules) to mobile investors, other countries will follow suit with a bigger pile of goodies. A race to the bottom ensues. The public subsidies will just keep piling up, with nothing to show for it.

The whole “downgrade for competitiveness” was a hoax, from the start. And on patent protections, the Indians knew this, the Brazilians knew this, and all the G77 nations knew it. So instead of accepting it willingly, they had it forced down their throats, via the H-bomb of trade, and Section 301.

Not even good for America

Everybody knew how damaging it was for lower-income countries. But many U.S. officials believed it was good for America, because it helped US multinationals. The problem was: TRIPS was essentially a licence for US (and other) multinationals to exploit everyone, including in the US. That trillion-dollar estimate of the annual cost to US citizens due to these monopolistic practices exposes where the true battle lines lie. This is a fight between the 99.9% of people who are forced to pay these private taxes, and the 0.1% of owners who are collecting them, in countries all over the world.

Yet now, a slow but powerful sea change of ideas is underway. As Katherine Tai said more recently,

“This inequality isn’t fair or sustainable. It didn’t happen overnight. It is the result of a long pursuit of tax, trade, labor, and other policies that encouraged a race to the bottom. [We want] an economic policy, including a trade policy, that delivers shared prosperity for all Americans, not just profits for corporations.”

Our current system of patents and IP is not fixed and inevitable – it has been the outcome of constantly evolving political and economic forces. The ground is now shifting fast, and new political possibilities are opening up. The time to grasp them is now.

The pandemic has forced hard questions about IP onto the global agenda. But the questions are not new, nor limited to Covid-19 or indeed just to health care. It applies to climate change, which needs an ongoing explosion of innovation, to give our planet any chance of avoiding the experts’ terrifying forecasts becoming reality.

Our approach to innovation doesn’t have to be a hidden private tax system over knowledge monopolies held by corporations. It can be one that supports the common good, and the health of the planet. And if we act now, we have the best chance in a generation to achieve that.