This Friday, America’s 45th President, Donald J. Trump, took the oath of office. While the full import of this development is still being analyzed by thinkers and commentators, one issue that has received limited attention thus far is how Trump’s election will affect America’s position on contentious intellectual property issues.
Last November, soon after Trump’s election, Prashant had written an incisive post analyzing the potential ramifications of his election on the global IP landscape in general and Indo-American debates in the realm of intellectual property law in particular.
Trump’s promise to get tough on trading partners, Prashant had argued, is likely to result in him taking a tough line against India on IP issues. This could include, he speculated, complaints before the WTO’s Dispute Settlement Body or unilateral trade sanctions aimed at ensuring that India brings her IP regime at par with its western counterparts.
Against this backdrop, Trump’s recent decision to nominate Robert Lighthizer as the new U.S. Trade Representative, to replace President Obama’s USTR Michael Froman, lends further credence to this argument, if Mr. Lighthizer’s track record is any indication.
More specifically, Lighthizer was the Deputy U.S. Trade Representative during the Reagan Administration and played an instrumental role in stemming the tide of Japanese imports by threatening them with quotas and punitive sanctions. After his stint in the Government, Lighthizer has spearheaded many anti-dumping and anti-subsidy cases against America’s trading partners.
Much like his to-be boss, Lighthizer is a strong proponent of protectionist policies and idolizes Reagan for espousing policies that were aimed at clamping down on the importation of steel and automobiles.
He believes that the problems faced by American manufacturers and small businessmen are principally attributable to the wrongful exploitation of free trade rules by America’s trading partners. In his opinion, this problem can only be remedied by America taking aggressive positions at the WTO and erecting barriers to the uninhibited cross-border flow of goods and services that operates to the detriment of American businesses.
In a 2008 article in the NYTimes, Mr. Lighthizer admonished Republican leaders such as John McCain for their unqualified support of free trade policies and argued that, while such policies may be desirable in some circumstances, they cannot be pursued at the cost of undermining the interests of working class Americans.
In a 2010 article, he seemed to endorse the Tea Party’s skepticism towards free trade policies on the ground that they have resulted in significant trade imbalances, allowed America’s trading partners to rig the rules of the game and have weakened America’s economic position vis-à-vis China.
Mr. Lighthizer’s appointment is subject to Senate approval. While it remains to be seen how this process plays out and what policy positions Mr. Lighthizer takes as the USTR, his appointment could be a positive development for India.
More specifically, it seems unlikely that the US will be able to continue its practice of using the Special 301 reporting process as an instrument of coercion to compel India to bring its IP regime in line with global norms which we’ve blogged about here here and here if it actively starts pursuing more protectionist policies.
Put differently, if the Trump Administration decides to frame its intellectual property policies in a manner that is exclusively designed to help it address its own sui generis concerns, it will lack the moral authority to prevent other countries, whose sui generis concerns are arguably more significant, from doing the same.
To be sure, the the United States has been engaging in this kind of hypocritical behavior for a long time. As Professor Basheer has noted, the US has for long lambasted countries for adopting the same kind of protectionist measures that it has no qualms about adopting itself – an approach which he rightly characterizes as the pot calling the kettle black. Further, it is hard to square Mr. Trump’s support for protectionist policies with the fact that his businesses have been the principal beneficiaries of free trade norms in countries such as China.
That said, in light of the fact that Trump, unlike his predecessors, openly espouses protectionist policies, it will be very difficult for the US to continue acting in this hypocritical fashion.
I’d like to thank Professor Basheer for his invaluable inputs!
Rahul
I am not sure I understand your point that things may be good for India. US policies are going to how they improve trade and jobs. Linked was posted January 10, 2017. It very briefly outlines some of the reasons manufacturing from US. https://pharmachemicalscoatings.blogspot.com/2017/01/can-uniform-safety-health-and-effluent.html
I had sent this link to Shamnad also. Basically US will and should do what makes sense. My point in the posted blog is that unless Indian pharmaceuticals are proactive, they have threats.
How the world is going to look five or ten years from now I don’t know but since Trump has talked about high prices things are going to change.
Best regards,
Girish Malhotra
Complaining about the 301 process is a popular activity on this blog, but I’m not sure you’re able to point to a whole lot it has managed to compel India to do. The 301 reports on India are clearly not positive — but then again, so what? Many countries (including close US trading partners and allies, e.g. Canada) get negative coverage.
To your main point — I don’t see at all how Lighthizer’s nomination as such is indicative of a possible positive sign for India. The inconsistencies you point to (a protectionist administration lacking credibility to go after other protectionist countries) are based on Trump’s “views” (to the extent they show any logic), and have little to do with Lighthizer. To the contrary, if Lighthizer pushes for sanctions/measures/etc… against trade partner “abusers,” it’s hard to see how this serves India, which runs its largest trade surplus with the US.
Inadvertently (?), you also appear to be suggesting that if the US is going to implement protectionist policies, than India can continue to do the same. Just as long as we’re clear on that…
Dear Groucho,
Thank you for your insightful comments.
First, as I explain in the article, Lighthizer, like Trump, has stated on multiple occasions that he favours protectionist policies, most notably in his NYTimes articles that I alluded to. This being the case, it would be safe to assume that the Trump Administration is going to actively pursue such policies. Ergo, the US will lack the moral authority or legitimacy to accuse India of pursuing policies that are in its own national interest when it is doing the same.
Second, while the consequences of the 301 reports are open to debate, the broader point that I was trying to make was that the US is unlikely to continue using these reports as an instrument of coercion because of point 1 above.
Finally, the central argument undergirding the US’ criticism of India’s IP regime oftentimes is that our regime is not in consonance with global norms. Since the US under Mr. Trump has no qualms about eschewing these norms when it finds it desirable so to do, I argued that India will now be able to more freely pursue policies that help her address her sui generis concerns in the same way as the US.
You argue that India will be free to do as it wants given that you would expect the US to do much the same. Again though, on the issue of protectionism cheering the possible implementation of protectionist policies by the country with which India runs its largest trade surplus is rather counter-intuitive.
You punted the ball somewhat on the 301 — would you highlight a single policy change that has been “forced” onto India as a result of the document?
I think we have different views on the importance of “moral authority” in international trade issues. As you suggested in your initial post, you already believe the US lacks this authority anyway. So a new administration doesn’t change that.
Hi,
First, the aim of this post was to identify the ramifications that Trump’s election would have on Indo-US relations in the realm of intellectual property debates. While it may be true that protectionist policies that the Trump Administration seems to espouse may not be good for India’s trading relations with the US, that is beyond the scope of this post.
Second, as for the implications of the 301 reports on India, I can do no better than to remind you of India’s private assurances to the US that it would not issue compulsory licenses last year. Even though the Government subsequently issued a clarification later that no such assurance had been made, few would cavil at the proposition that such an assurance, if indeed made, was the direct consequence of pressure tactics employed by the US through such tools as the 301 reports.
Third, as I explain in the article, the US has always adopted a hypocritical stance on this issue, but it will be much harder for them to do so now in light of Trump’s overt support for protectionist policies.
Well, the title of your post is why Lighthizer’s appointment may be good news for India. I argue your focus is too narrow, and ultimately your good news is more likely to be of the Professor Farnsworth variety.
If you can do no better than a report which was categorically denied by the government, you can’t do very well at all. [And wouldn’t such a guarantee only apply to potential CLs under Art. 92 rather than applications under Art. 84?]
Dear Groucho,
I would submit that the half-hearted clarification issued by the Government only reinforced the correctness of the rumour about the issuance of a private assurance.
To your question about Sec. 92 and 84, given that the Patent Office lacks the requisite institutional autonomy and competence, I see no reason why the Government cannot compel the Patent Office to act in ways that are in consonance with the Government’s wishes. This being the case, the assurance could very well have applied to Section 84 as well.
So — the government issuing a statement that the reports of a private assurance were “factually incorrect” is proof (!!!) that the reports were, in fact, accurate. I take it that at this point you’ve stopped trying to make a reasonable argument and are just trolling.
That still leaves this alleged assurance as the only evidence of impact of the 301 on India you’ve offered. It’s hard to be impressed.