TEXTS
Developing Countries and IP Policy
By Carolyn Deere
In the context of a global “information” economy propelled increasingly
by knowledge-based industries, the protection of ideas and innovations
has become a central priority in the competitive strategies of many
powerful economic actors. As global economic disparities widen, the
ownership and distribution of these assets has also become a
high-stakes issue in international economic negotiations.
At
present, there is considerable debate about what kind of IP policies
will best help advance development goals in different developing
countries. Indeed, over the centuries, both governments and industry
have held varying views on the appropriate objectives, nature and role
of IP policy depending on their level of economic and technological
development, prevailing economic circumstances and political
priorities. Countries have selected vastly different approaches to the
scope, length and enforcement of IP protection according to whether
their goals are to promote innovation, protect industry investment,
advance international competitive advantage, reward importers of
foreign technologies, encourage diffusion of new knowledge, create
incentives for future innovation, or ensure affordability of
technologies.
Despite this historical reality, the overarching
global trend is that of a considerable strengthening of IP protection,
whereby developing countries are pushed to upgrade to meet (and
sometimes to exceed) developed country IP standards as the global
benchmark. These strengthened standards are far better suited to the
interests of the current holders of information, data and knowledge (in
large part multinational corporation and developed country research
centres) rather than to those in developing countries needing access to
these assets. Most commonly, developing countries are nonetheless
neither pro- nor anti-intellectual property per se. Rather, they call
for more careful analysis of which IP policies will serve what goals
and whose interests under what conditions. Most importantly, developing
countries have begun to work to carve out “policy space” within
international and domestic IP policies to ensure that they retain
flexibility to adopt policies that advance their development
priorities.
To understand the dynamics of IP policy
discussions likely to emerge in the context of WSIS, it is useful to
reflect on some key aspects of recent IP trendss with respect to
developing countries.
Over the past decades, international rules
on IP protection have expanded into what can be best described as a
global system of intellectual property regulation. Perhaps the most
significant elements of this global IP regime—and that which has
generated the most controversy—is the entry into force of the WTO's
Agreement on Trade in Intellectual Rights (TRIPS) which establishes
universal minimum standards of protection and enforcement for virtually
all forms of IP. The pressure on developing countries to implement
TRIPS-compliant IP policies has subsequently generated, sometimes for
the first time, national debates in developing countries on the
appropriate nature of IP protection.
Beyond TRIPS, the global IP
system also comprises a series of intersecting multilateral, regional
and bilateral agreements, regional conventions and instruments, and
international institutions that together build on and strengthen the
minimum TRIPS standards. Shared across these agreements and
institutions is a common tendency for the range of protectable subject
matter to be widened, for new IP rights to be created, and for the
basic features of IP rights to be strengthened and standardized.
As
developing countries collectively have become more effective in
resisting IP pressures in the TRIPS arena, the US, in particular, has
resorted to other fora and tactics to force countries to increase their
IP standards, including direct threats of economic sanctions or
withdrawal of aid and the incorporation of high IP standards in
bilateral and regional trade and investment agreements (such as in US
free trade agreements with Jordan (2002), Singapore (2003) and Chile
(2003). The resulting TRIPS “plus” agreements can, for example, oblige
countries to introduce stronger protection at a faster pace and higher
standard than TRIPS requires.
At the multilateral level, WIPO
has re-emerged as a focal point for developed countries to advance
their IP agenda. A proposed Substantive Patent Law Treaty has the
potential to harmonize national and regional patent laws almost
completely. It would, for example, lead to agreed international
definitions of key terms such as prior art, novelty, and inventive
steps—thus considerably limiting developing country discretion as to
the breadth of patent claims and foreclosing the use of flexibilities
won in the TRIPS context. Additional examples of the creation of new IP
rights include the two 1996 WIPO Internet Treaties (which developing
countries are now being pushed to ratify in bilateral trade
agreements).
Finally, technical assistance and capacity
building programs are another means through which developing country IP
standards are becoming harmonized with Northern standards. Developing
countries voice increasing concern that the advice provided in the
course of these initiatives fail to properly alert countries to the
flexibilities that TRIPS provides or to help them tailor policies to
best address their economic circumstances and priorities.
In sum, for developing countries, current trends in the global IP system:
· raise the floor of minimum IP standards above and beyond the TRIPS Agreement;
·
place severe constraints on the policy "space" available to them to
devise and implement IP policies supportive of development goals; and
·
deprive them of the policy options and flexibilities that developed
countries so clearly relied upon to serve their national development.
With
simultaneous action on the multilateral, regional and bilateral front,
the formulation of coherent and effective negotiation strategies on IP
policy is becoming ever more difficult for developing countries.
Powerful corporate interests, and the governments that represent them,
are constantly in search of the most effective forum to advance their
desired norms and rules regarding intellectual property. At WSIS, civil
society groups and concerned developed countries must work with
developing countries to advance a development-oriented perspective on
IP policy in the information era. WSIS provides an opportunity to focus
on the needs of developing countries with regard to IP policy—on
ensuring access to the information, data, educational resources vital
to creativity, innovation and building local technological capacity—and
not on the policy preferences of powerful industry lobbies.
Carolyn
Deere is an independent consultant and a doctoral candidate at Oxford
University. She was formerly the Assistant Director of the Rockefeller
Foundation's Global Inclusion program with responsibility for
grantmaking on intellectual property, trade and development.
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Source: http://world-information.org/wio/wsis/texts