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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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