Should Industry Support LDCs’ Request For Unlimited Time To Implement The TRIPS Agreement? Absolutely

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By Nick Ashton-Hart

Some of you may have noticed that the ICT sector trade association that I represent in Geneva, the Computer and Communication Industry Association (CCIA), has endorsed a bid by the world’s Least Developed Countries (LDC’s) to remove any specific deadline for full compliance with the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.

While this was only announced on 4th March it has been in the works for a while, and when discussing it with member-states many seemed surprised that an industry association would support the extension.

It is certainly true that intellectual property protection is important to the ICT [information and communications technology] sector, but from CCIA’s perspective, it is a mistake to see IP in isolation, ignoring all other public policy priorities. Simply creating IP laws does not create a culture of innovation in a country – and implementing IP systems is not cost-free. Legislation alone does not make a functioning IP system, you have to create the infrastructure that enables it, such as creating a patent application and review process, copyright royalty handling systems, etc.  It is also necessary to craft remedies in the case of infringement that are balanced and enable rights holders to have reasonable recourse to protect their property – and that’s just to get started.

For LDCs, where the average per-capita daily income is just over US$2, you cannot close your eyes to the fact that the average citizen is dealing with very profound basic issues: access to clean water, food, clothing, shelter, education – and basic medical care. A recent factsheet by UNDP and UNAIDS makes very sobering reading.

If you are a policymaker in an LDC, are you likely to believe creating IP systems is the best way to spend your governments’ funds, or is concentrating on the basics your people need a better approach?  The answer you or I would make to that question is irrelevant – what matters is that LDC policymakers are free to answer that question in the negative for as long as they need to if they believe that’s the right approach for them.

That’s one reason why we support the extension.

The second is also pretty simple, and it boils down to one word: legitimacy.

The IP system cannot be seen as blind to basic concepts of social justice, proportionality, and common humanity or it will lose legitimacy. Forcing LDCs to implement TRIPS fully based upon a timetable which disregards their needs would be very damaging to IP.  Any company that believes IP is an important part of their business should care that the system isn’t deligitimized by shortsided actions that result in the world’s poorest paying the richest for medicine and other essential technologies. IP is abused by that kind of rent-seeking in some sectors now – and has been for some time – and the actions of a relative few have damaged the interests of the rest. This is an opportunity for the many to make clear that the actions of a relative few aren’t the norm, but the exception.

The LDCs’ proposal is an opportunity for all concerned with IP to recapture legitimacy. It is the right thing to do from a self-interested perspective on that basis. For companies that take seriously the concepts of corporate social responsibility and that have active CSR programmes supporting the LDC extension is a good way to ‘walk the walk’ – and in many sectors, to do so at no cost whatever.

More profoundly in my personal estimation is that it is just the right thing to do – if you believe, as I do, that we owe it to humanity to choose sustainable and morally justifiable policies – and that those in the privileged position of impacting public policy have an especial obligation because of that impact.

At some point, LDCs will want to start implementing balanced IP systems because that will help them develop further. We all want to live to see the day when there are no longer any countries that still qualify as LDCs. The best way to ensure that day comes is to bring them into the IP system over time and in sync with their needs.

[Note: The CCIA press release on the LDC extension is available here.]

Nick Ashton-Hart is CCIA’s Geneva Representative. You can follow him on twitter on @nashtonhart. CCIA is the only ICT sector trade association with a permanent presence in Geneva and is online at www.ccianet.org.

 

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