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Putting the brakes on intellectual
property rights
By Chee Yoke Heong
While advanced countries and their companies are
pushing hard for the strengthening of intellectual
property rights (IPRs) around the globe, there is now a
strong movement among the governments of developing
countries, non-governmental organizations (NGOs) and
academia to counter this trend. At the recent general
assembly of the World Intellectual Property Organization
(WIPO) in Geneva, a groundbreaking move was made when
Brazil and Argentina submitted a joint proposal calling
for the establishment of a "Development Agenda" for
WIPO.
The proposal, which was co-sponsored by
Bolivia, Cuba, the Dominican Republic, Ecuador, Egypt,
Iran, Kenya, Sierra Leone, South Africa, Tanzania and
Venezuela, was discussed extensively by the assembly and
adopted on October 4. These countries argued that the
levels of IPR protection should be commensurate with the
level of their development and that the present
one-size-fits-all approach is detrimental to many poorer
countries. India, though not a co-sponsor, backed the
proposal by issuing a separate statement to that effect.
This is seen as an important milestone because
WIPO, a United Nations body since 1974, is often accused
of caring more for the rights of intellectual property
owners than users, especially those in developing
countries. It also acts as a counterbalance to
aggressive moves over the years by advanced countries,
led especially by the US, to force other countries to
implement strict IPR regulations.
Since most of
the world's patents and copyrights are held by companies
in advanced countries, these entities have put enormous
pressure on their governments to force other countries
to strengthen IPR protection. This is done through
various channels, either through the multilateral
process under the World Trade Organization (WTO), with
its retaliatory mechanism, or through bilateral means
via free-trade agreements (FTAs). Since Asia is known
for its copyright and trademark violations, it is not
surprising that intellectual property protection is part
and parcel of the US's FTAs with both Singapore and
Thailand.
The US also uses the threat of
sanctions as a means to get countries to extend IPR
protection. Under Section 301 of the US Trade Act of
1974, the US trade representative is required to submit
a list of "countries that have the most egregious acts,
policies, or practices, or whose acts, policies, or
practices have the greatest adverse impact (actual or
potential) on relevant US products and are not engaged
in good-faith negotiations to address these problems".
If no action is taken by the government of the country
listed on the "watch list", the US can impose trade
sanctions against the state concerned. Taiwan is one
country that figures prominently on the list.
The move by Brazil, Argentina in WIPO thus
signals a concerted effort by a group of developing
countries to resist the worldwide push for IPR
protection which, they argued, is burdensome to them.
They are against the harmonization of intellectual
property laws that leads to higher protection standards
in all countries, irrespective of their levels of
development, and instead called for the integration of
the "development dimension" into policymaking on
intellectual property protection, saying assessment
should be done on a case-by-case basis.
India
concurred, saying that higher levels of intellectual
property inherent in any harmonization exercise that
takes no account of the circumstances of individual
countries are detrimental to the developing world.
"Intellectual property rights have to be viewed not as a
self-contained and distinct domain, but rather as an
effective policy instrument for wide-ranging
socio-economic and technological development," India
said in support of the Brazilian and Argentine proposal.
Hundreds of scientists, academics, NGOs and
individuals also gave their support to the proposal for
a development agenda. In a statement titled the "Geneva
Declaration on the Future of the World Intellectual
Property Organization", they urged WIPO to adopt a more
balanced view of the relative benefits of harmonization
and diversity and seek to impose global conformity only
when it truly benefits all of humanity. "A
one-size-fits-all approach that embraces the highest
levels of intellectual property protection for everyone
leads to ludicrous outcomes for countries that are
struggling to meet the most basic needs of their
citizens," the statement said.
Such statements
point to a convergence of views by an increasing number
of people that IPRs, or private IPRs as is mostly the
case, reward individuals and impose high costs on the
general public. One of the arguments by proponents of
IPR protection is that IPRs are essential for growth and
investment. But Brazil and Argentina, in their statement
to WIPO, said even in developing countries that may have
a degree of absorptive technological capacity, higher
standards of intellectual property protection have
failed to foster the transfer of technology through
foreign direct investment and licensing.
According to Ha-Joon Chang and Ilene Grabel in a
new book titled Reclaiming Development, there is
little evidence that the adoption of IPRs, especially
those embodied in the WTO's Trade-related Intellectual
Property Rights (TRIPs) agreement, encouraged technology
transfers from industrialized to developing countries.
Also, there is little evidence that the protection of
IPRs plays any role in foreign direct investment.
Indeed, Switzerland's experience suggests the opposite:
the absence of patent laws made the country attractive
to foreign investors.
The authors note that
patents were not important to the development of
industrialized countries, which did not recognize or
enforce patents until after the process of
industrialization was complete. It is therefore unfair
that developing countries today are being pressured to
adopt IPR protection. Since most developing countries
are users rather than creators of new technologies, it
is not necessary to adopt strong IPR protection, which
is costly, among other things, in the form of royalty
payments to corporations in industrialized countries.
According to the UN Development Program, 97% of the
world's patents are held by developed countries.
IPRs also have increased the power of
transnational corporations vis-a-vis consumers. They
encourage monopolistic behavior such as monopoly
pricing. This is problematic since developing countries
often have weak - and sometimes non-existent -
anti-trust laws or weak enforcement capabilities,
particularly in relation to foreign multinationals.
As the "Geneva Declaration" suggests, IPRs
should not be an end in themselves and should point to
initiatives that encourage innovations and developments
that create public goods in the absence of IPR
protection, such as the Internet, the World Wide Web,
Wikipedia, the Creative Commons, GNU Linux and other
free and open software projects, as well as distance
education and medical research tools. Technologies like
Google's now provide tens of millions of people with
incredible tools to find information.
There are
alternatives to IPR regimes that also enhance public
welfare. There is renewed interest in compensatory
liability and innovation prizes as models for economic
incentives for science and technology that can
facilitate follow-on innovation and avoid monopolistic
abuses. These alternatives are good counterpoints to the
current IPR regimes. And as the cost and limitations of
IPRs become apparent, it is wise for countries to adopt
IPRs as a tool, but not the only tool, for development.
(Copyright 2004 Asia Times Online Ltd. All
rights reserved. Please contact content@atimes.com for
information on our sales and syndication policies.)
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