Even within the walls of the World Trade Organization, the Trade-Related Aspects of Intellectual Property Rights agreement, or TRIPS, is a paradox and a freak: a temple to monopoly inside the church of free trade.
The Biden administration’s announcement on May 5 that it supports an emergency waiver of intellectual property rules by the WTO has been rightly heralded as a major event. Even if the White House statement was vague on the details, the news jolted to life a seven-month stalemate inside the WTO over how to overcome a supply crisis that has seen only three-tenths of 1 percent of vaccines go to low-income countries. The European Parliament may push the needle further in June when it votes on a resolution calling on European capitals to join Washington on the side of more than 100 countries that support lifting intellectual property restrictions from products used to treat and contain Covid-19.
One thing that hasn’t changed is the tone of ridiculous solemnity around the intellectual property regime in question. Listening to the most stalwart defenders of TRIPS, it’s possible to confuse the proposed waiver with a particle accelerator of unfathomable and experimental power. To hear the trade associations and their political allies tell it, meddling with TRIPS jeopardizes your job, your safety, and the global economy, as much as or more than SARS-CoV-2, as well as any hope of future innovation and progress. In announcing the White House decision, U.S. Trade Representative Katherine Tai gravely described the waiver as an “extraordinary measure.”
In truth, there is nothing extraordinary about suspending TRIPS to address what the WTO’s director-general calls “the moral and economic issue of our time.” There can’t be, because there is nothing extraordinary about TRIPS itself. Its backstory is almost impossibly shallow and grubby; its founding documents younger than Justin Bieber. TRIPS is not the expression of a universal post–Cold War consensus, in the way the U.N. Declaration on Human Rights gave voice to human aspirations after World War II. It was born as a brute and profoundly undemocratic expression of concentrated corporate power—the work of “less than 50 individuals,” according to a U.S. trade official present at the creation. One of that official’s reluctant Indian counterparts, Prabhat Patnaik, has described the TRIPS affair as “a parody of the wildest conspiracy theory.”
The negotiations that led to the creation of TRIPS were less held over a table than conducted on a rack. It was the only way to enforce the peculiar and nearly universally rejected concept of medical monopoly, an American innovation that cut hard against centuries of moral, economic, and legal tradition, including those of the wider West.