An esoteric intellectual property right granted to a small pastry product leads us to the epicentre of the geopolitics of Brexit.

Britain’s international trade Minister Liam Fox let slip last week in a BBC Radio interview  that his US trade talks will include intellectual property rights (IPR).  The inclusion of IPR is not a surprise to seasoned watchers of the international trade agenda, but the implications for British businesses might be. Brexit means  that some IP rights  will fall away, such as geographical indicators which protect local British products like the Cornish pasty. There will be political choices for the British government. Those choices will be shaped by the wider geo-political forces between the EU and the US.  

 Mr Fox’ revelation came during an interview on the BBC Radio 4 World at One  on 24 July. There was no detail. He  just said that IPR was on the list of topics discussed during a meeting with the US trade negotiators. But recent history of trade talks can help us to fill in the detail.

Intellectual property has been working its way onto the trade policy agenda for the past four decades, and now seems established on the list of chapters for new bilateral and multilateral agreements.

In particular, the United States  has been driving its own foreign trade  agenda in the IPR space for over 30 years. (See A Copyright Masquerade ch. 5). In recent years, IPR is near top of the list for the United States Trade Representative (USTR), the body that leads in trade negotiations. IPR is a high priority for US industries, notably the Hollywood studios and the US music business, as well as the global pharmaceutical giants. It was the US, together with the Japanese, that drove the failed Anti-counterfeiting Trade Agreement (ACTA). Hence, to hear that IPR is being discussed for a post-Brexit deal is unsurprising.

The EU is also including intellectual property rights in its new trade agreements. As such, we can expect that IPR will form part of any ‘deep and comprehensive’ agreement between Britain and the EU27. But the EU has some different priorities from the US, and this is where Britain could be caught out.  On the global stage, the EU is now as powerful a bloc as the US ever was, and it seeks to make its law the norm with its trading partners. 

Negotiations over IPR will affect British companies in unexpected ways. Here’s one  example. Some small niche food and drink producers  currently benefit from IP protection under European Union law, in the form of Geographical Indicator (GIs).   The GI is  a mechanism which protects the names of  regional and traditional foods whose origin can be verified and guaranteed.  In Brtiain, there are 84 protected food names, including the Cornish Pasty, Melton Mowbray pork pies,  Rutland Bitter and my personal favorite – West Country Farmhouse Cheddar. So whlist they represent a small sector of the British food industry, they also reflect some of our cherished and loved products.

Geographical Indicators matter in international trade talks because the EU and the US cannot agree over them. The EU insists that GIs should be protected, and included in free trade agreements.  The EU priorities are to protect foods such as Parma ham and Champagne. The US considers them to be less of a priority. In the case of the ACTA, the USTR negotiators wanted  Geographical Indicators excluded from  the scope of the agreement,  because they would slow things down. (See Cables reveal how US authorities cooked up ACTA).The EU managed to get geographical indicators into the agreement only because the US negotiators were on the back foot and needed to bring it to a speedy conclusion. (See ACTA: De Gucht attacks the European Parliament ).  

In the abandoned TTIP agreement between the EU and the US, intellectual property rights were  a sensitive issue, where there was disagreement between the two parties (See TTIP leaks: US warned on sensitive IPR issues).

So the position for the UK will be quite tricky. When Britain leaves the EU, the legal protection for British geographical indicators in the EU 27 will cease. It means that British companies will be deprived of a benefit that they have enjoyed from EU membership. In order to maintain protection in Britain, these rights will need new legislation, and reciprocal recognition in the EU 27.  In the negotiations  with the EU, there will be pressure from the European negotiators to come to an agreement on such reciprocal recognition. It is one of the issues that risks becoming a political football as the trade talks harden.  

And on future visits  to Washington, Mr Fox is likely to come under pressure from the US negotiators to drop protection for geographical indicators.

This is how the humble Cornish Pasty could become a Brexit political  choice.  

What happens if Mr Fox gives in to US pressure and fails to continue the protection of Geographical Indicators? Will Mr Fox support British businesses, or give in to the mighty US corporations? It would surely be untenable to agree to protect GIs in an EU trade agreement, and agree not to do so in a US agreement.  If he gives in to the US,  and especially if the British government does not legislate to maintain GI protection, will it create  a difficulty with the EU?

Mr Fox also said in that BBC Radio 4 interview: “the only reason that we wouldn’t come to a free and open agreement is because politics gets in the way of economics” (as reported by InFacts). In that respect, he betrays a certain naivété.  Trade agreements with the US have always been about politics – notably, US foreign policy. The IPR-in-trade agenda is a case in point.

IPR is of course, only one of the conflicting agendas that Mr Fox will face in his  talks with Britain's new trade partners on either side of the Atlantic.

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If Mr Fox wants to know more about IP in trade, he would do well to read Drahos and Braithwaite: "Information Feudalism". This is the seminal book on IP in trade policy. He might also like to read the  discussion of the IP trade agenda and the Anti-counterfeiting Trade Agreement (ACTA) in  my own book A Copyright Masquerade, chapters 3-6. He may also contact me directly via the Contact Us page on this website.

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Photo: Official photo tweeted by British Embassy, Washington.


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Iptegrity.com is the website of Dr Monica Horten. She is  a trainer & consultant on Internet governance policy, published author& Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and beyond.  She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy (and now Brexit). Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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