Academics, Civil Society Groups: WIPO must promote sound Intellectual Property laws in order to encourage social, economic and cultural development

A Positive Development Agenda for WIPO

Following a call – primarily from Argentina and Brazil, but with the support of an additional 12 countries – to adopt a "development agenda”, the WIPO General Assembly has tasked WIPO to investigate the components of an agenda of this nature.

We, the undersigned, having read the main points of the submission by Argentina and Brazil, believe the following would properly constitute a positive agenda for economic, social and cultural development.
Principles

Innovative products and creative works have improved the lives of billions of people across the planet. They have led to economic, social and cultural development, and enabled people to escape from poverty and disease.

The key drivers of both innovation and creation are the institutions of the market – property rights, contracts, and the rule of law. Markets enable specialisation and encourage competition, which in turn provide incentives to develop new products, as entrepreneurs seek new ways of satisfying consumers.

Copyrights, patents, trade secrets, trademarks, and other forms of intellectual property rights (IPRs) enable people to protect their innovations and creative works from unfair use or copying by others. They also provide incentives to invest in the development of products that are difficult to develop but easy to copy. IPRs have incentivised the development of a wide range of technologies, from aircrafts to AIDS medicines, from seeds to search engines. Without IPRs, many of the wonderful technologies that have improved our lives would never have been developed.

International trade also benefits billions and plays a role in promoting competition and hence incentivising new product development. But the benefits of international trade are greater for those nations that provide protection for property rights and enable markets to flourish through freedom of contract and the rule of law.

For over a century, nations have coordinated their actions to protect intellectual property through voluntary international agreements. These agreements have been administered by the World Intellectual Property Organisation (WIPO) and its predecessors.

Through its role as administrator of these international agreements and as technical advisor, WIPO has helped nations, both rich and poor, implement appropriate IPR arrangements. As a result, the Organisation has helped “promote creative intellectual activity” and facilitated “transfer of technology,” thereby encouraging “economic, social and cultural development” – its remit under the agreement establishing it as a UN agency in 1974.

Among the most important activities carried out by WIPO is the provision of technical advice, which enables Member States to implement appropriate intellectual property systems. It is necessary to specify what we mean by ‘appropriate’ here. IP systems must be appropriate to the needs of creators and innovators as well as to the consumers of creative and innovative works.

Thus, in a country that has writers and readers, musicians and listeners, film-makers and viewers, programmers and users of software, the IP system should provide copyright protection for all these creative works. Ideally, the system would apply the same rules to locally created works and to imports, in order to encourage the best possible incentives to create works that will be valued by the widest audience and will produce the best possible cultural mix.

Meanwhile, in a country that has inventors and users of inventions, the IP system should provide patent protection for a wide range of inventions, including those produced locally and those produced in foreign parts, without discrimination. Such a non-discriminatory system will provide the greatest incentive to inventors to develop technologies for local use as well as for sale abroad, ensuring that a wide range of such innovations are available to consumers.

We do not mean, however, that IP systems somehow be tailored to the industrial interests of a country. Where industrial concerns are very powerful they have occasionally persuaded legislators to implement IP regimes that are either excessively strong or inappropriately weak, with adverse consequences for innovators, creators and consumers.

An example of the former might be the provision of patent protection to those who discover genetic sequences but do not yet know precisely the purposes to which they will be put. While it is as yet not absolutely clear that patents on such sequences are detrimental to overall rates of innovation, early evidence points in that direction. An example of the latter would be the bar imposed on patenting of certain chemicals by countries with industries producing copies of those chemicals. Such restrictions inhibit local innovations in the development of new chemicals, with knock-on negative effects for technology transfer and economic growth.

WIPO’s Current Role

WIPO currently provides advice on these issues through a program that is geared specifically to support poor countries in their initiatives to maximise the use and effectiveness of IP as a tool for economic, social, and cultural development. The strategy that shapes the main program is based on the insights of research that illustrates how both nations and individual enterprises can develop and promote the use of IP as an economic asset in order to facilitate growth and increase well-being.

In addition, WIPO tailors its technical assistance to poor countries on a case by case basis, conforming to the logistical needs of each Member State. It supports local IP offices, enabling them to service the essential requirements of IP developers and users. Increasingly, WIPO is providing training to enforcement officers. And with WIPO’s support, many countries are also establishing outreach programs for potential and actual users to raise awareness of the benefits that arise from an effectively run IP system.

Many poorer countries have thriving communities of creators and innovators. Sadly, the creative works produced by members of these communities are often under-valued and remain obscure, while innovations remain little more than ideas because of the lack of appropriate IP regimes.

Encouragingly, many of the Member States that receive WIPO assistance are continuing to broaden and deepen their core set of activities. They are also developing and nurturing more efficient institutions – laws and systems that not only sustain creativity and innovation but also promote more productive investment and ensure local IP frameworks are used effectively to realise the latent potential for economic and social development.

Nevertheless, despite these efforts by WIPO, many countries still have relatively few IP professionals. Lawyers and judges lack a deep understanding of the role of IP, let alone the detail of how best to apply IP rules at a local level.

A Development Agenda

So, a future development-oriented agenda for WIPO would involve enhancing and strengthening the outreach and advisory work that it already undertakes. It would also involve facilitating negotiations on future treaties that improve the effectiveness of IP regimes. For example – and in direct contradiction of the claim in the proposal submitted by Brazil and Argentina – the Substantive Patent Law Treaty offers WIPO members a means of ensuring that their patent law conforms to best practice.

By contrast, a moratorium on new treaties and harmonization of standards would hinder improvements in the global IPR framework. Meanwhile, the push for more ‘flexibilities’ might undermine the effectiveness of the IPR system. While it is appropriate that governments reserve the right to override intellectual property rights in truly exceptional circumstances – for example, when there is a genuine health emergency – these must remain the exception and rules pertaining to their application must be clear and fairly applied. As with all market institutions, intellectual property rights are effective in large part because they confer unambiguous rights. Wherever rights are ambiguous, uncertainty is created, confidence in the system is undermined, and investment is discouraged. The poverty and associated ill health that still pervades much of the world is a direct consequence of such ‘flexibilities’.

Signatories

1. Bibek Debroy, Rajiv Gandhi Institute for Contemporary Studies, India
2. Roberto Fendt, Instituto Liberal, Brazil
3. Dr Meir Pugatch, Israel
4. Pedro Isern, CADAL, Argentina
5. Bruce Lehman, IIPI, USA
6. Dr Robert Sauer, Jerusalem Institute for Market Studies, Israel
7. Prof. Jacques Bourgeois, College of Europe, Belgium
8. Franklin Cudjoe, Imani, Ghana
9. Thompson Ayodele, Institute for Public Policy Analysis, Nigeria
10. Natasha Srdoc, Adriatic Institute of Public Policy, Croatia
11. Prof. Cesare Galli, University of Parma, Italy
12. Eustace G Davie, Free Market Foundation, South Africa.
13. Terry J Markman, Consulting Engineer, Johannesburg, South Africa.
14. Andrew Work, Lion Rock Institute, China
15. Dora Ampuero, Instituto Ecuatoriana de Economia y Politica, Ecuador
16. Rocio Guijarro, CEDICE, Venezuela
17. Barun Mitra, Liberty Institute, India
18. Prof. Julian Morris, Buckingham University & Int’l Policy Network, UK
19. Prof. Lucas Bergkamp, Erasmus University, Netherlands
20. Tom Giovanetti, Institute for Policy Innovation, USA
21. Dr Lee Gillespie White, the Whittaker Group, USA
22. Dr Michel Kelly Gagnon, Institut Economique de Montreal, Canada
23. Joel Anand Samy, World Development and Empowerment, USA
24. James De Long, Progress & Freedom Foundation, USA
25. Chris Tame, Libertarian Alliance, UK
26. Jerry Norris, Center for Science in Public Policy, Hudson Institute, USA
27. Helen Disney, Stockholm Network, UK
28. Alberto Mingardi, Instituto Bruno Leoni, Italy
29. Dr. John Kilama, Global Bioscience Development Institute, USA
30. Andres Mejía-Vergnaud, Instituto Desarollo y Libertad, Colombia
31. Margaret Tse, Instituto Liberdade, Brazil

To find out more about this letter and also about how to become a signatory, please contact Alec van Gelder (alec [at] policynetwork.net).