WIPO Development Seminar Informs But Impact Unclear

Many of the top experts on the subject of intellectual property and global development shared views in Geneva last week at a World Intellectual Property Organisation seminar. But while the event may have served to spell out the current debate on the issue, it is unclear how the two-day event advanced the issue from a policy-making standpoint. The meeting was not intended to be a negotiation and no conclusions were drawn from it.

WIPO’s international bureau organised the event under instructions from last fall’s WIPO General Assembly, the once-a-year gathering of all member nations’ top representatives to the Geneva-based body. After last week’s event, WIPO officials indicated that it is unclear what will follow the 2-3 May seminar as no further events are mandated.

From an educational standpoint, the well over a hundred participants were treated to the current perspectives on the benefits of intellectual property for development, as well as numerous proposals for improvement of the current intellectual property system and arguments for the status quo.

WIPO this year is considering a proposal to rework its orientation so as to place greater emphasis on developing country concerns, following the lead of other Geneva-based bodies such as the World Trade Organisation. The issue is expected to come up again at next fall’s WIPO General Assembly.

In last week’s seminar, non-governmental organisations, academics, industry representatives and others welcomed the chance to air their views in a WIPO setting, considered by some as a sign of increased transparency at WIPO. But disagreements sometimes arose.

One of the more prominent disagreements during the week was between Prabuddha Ganguli, an intellectual property management consultant and patent lawyer in India, and James Love, director of the Consumer Project on Technology. Ganguli welcomed the recent return of India’s patent system after decades, while Love attributed India’s success in intellectual property to the absence of patents and said it had chosen to resurrect the patent law under pressure from the United States.

In addition, Love asserted that Indian consumers have benefited from the lack of enforcement of copyright laws, a point Ganguli publicly denounced on at least two occasions over the next two days.

In his presentation, Love also argued that knowledge should be placed in the public domain when it promotes social welfare and protects human rights. He touted a bill introduced in the U.S. Congress this year aimed at reforming the intellectual property system to separate the need to sell products at high prices to recover research and development costs.

The seminar was co-organised by the U.N. Conference on Trade and Development, U.N. Industrial Development Organization, World Health Organisation and the World Trade Organization. It was broken out by themes including public health, biodiversity and traditional knowledge, copyright and related rights in the digital environment, competition policy, intellectual property and development, and national best practices.

Sisule Musungu, an intellectual property expert from the South Centre, an intergovernmental think tank of developing countries, opened the event with a look at the turn toward a development agenda in other Geneva bodies, such as the WTO’s acknowledgement of governments’ need to safeguard public health. He compared these to WIPO’s focus on intellectual property protection which he said might be anathema to developing countries’ best interests, as is suggested in the proposal for a Development Agenda currently under discussion at WIPO.

Public Health

On the subject of health, Richard Wilder, an attorney at Washington-based Sidley Austin Brown and Wood, and former director of WIPO’s global intellectual property issues division, argued that intellectual property could be better used to develop needed new medicines for developing country diseases.

Wilder said that gaps between basic, pre-clinical and clinical research phases of medicine development, as well as the post-marketing phase, could be filled by some combination of incentivized private investments and public support. The most important gap, he said, is between the basic research emerging from universities and public institutions and the pre-clinical research in which private companies generally apply the basic research to prospective medicines. This has been addressed in the United States with policies such as the Bayh-Dole Act (named for the co-sponsoring lawmakers), which clarified the status of patents on ideas as they move between those phases.

Wilder called for WIPO’s guidance on further study on how to obtain maximum leverage toward public health goals, recognizing the needs of various actors, and promote enhanced participation by developing country research institutions. “I would very much like to see WIPO play a leadership role in this effort,” he said.

William Hare, an attorney for Indian pharmaceutical company Ranbaxy Laboratories, gave a mixed review of the new Indian patent law, saying it “had a lot of surprises in it, some intentional, some unintentional,” and that time would show its effects. But he said the company believes the act will help India and safeguards the company’s ability to protect its patents in developing countries. Hare identified several provisions in the new patent law that he said could lead to lawsuits because of their vague wording.

Dr. Mogha Smith, a former medical practitioner now with Oxfam, highlighted the millions of children – mainly in developing countries — who die each year of curable diseases, and said the intellectual property system has been less effective in the South than in the North. She encouraged WIPO to pursue transparency in its policy-making, work with other agencies such as the WHO to form teams of experts, keep its mandate to promote innovation of medicines that reach those who need them, and a show a willingness to address the proposed Development Agenda with an eye toward intellectual property as one means to innovation and not as an end in itself.

She further proposed that the impact of the WTO Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) be calculated before more intellectual property rights are strengthened. Mostly, she said, WIPO should join other agencies in beginning to recognize that intellectual property rights should be developed according to health and development needs.

“I feel that WIPO is waking up to the world but resisting,” Smith said. “We want to shake WIPO to wake up.”

Biodiversity

In the area of biodiversity and traditional knowledge, speakers generally agreed on the importance of the issue but varied somewhat on how to proceed. Hamdallah Zedan, executive secretary of the Montreal-based Convention on Biological Diversity, said there currently is a “degree of uncertainty” on rules governing access to genetic resources. This could be due to the lack of international instruments to address problems of non-compliance with national access requirements, he said. There also is disagreement on requirements for disclosure of the origin of genetic resources and traditional knowledge, he said.

Graham Dutfield, a researcher at the University of London, said development can be destructive to traditional knowledge and that a discussion centred on intellectual property rights narrows the issue to only a portion of existing traditional knowledge. He urged policymakers to recognize the different interests and concerns of different countries, and not to expect quick solutions. Dutfield also urged avoidance of protracted discussions on the applicability of existing intellectual property rights to traditional knowledge and on the need to define traditional knowledge and technologies before finding solutions.

Other recommendations from Dutfield include determining costs of proposals or measures to protect traditional knowledge, ensuring the consistency of national policies and multilateral negotiating positions, encouraging the participation of traditional knowledge holders and putting the interests of indigenous communities at the centre of negotiations.

Roger Chennels, an attorney at Chennels Albertyn in South Africa, described the case of the Sans peoples of Southern Africa, who are recognized as the First Peoples of Africa and said to hold the oldest genes known to man. He said the group’s numbers are dwindling and they are in a fight to gain the rights to traditional knowledge they shared with others during the past century.

Copyrights In The Digital Environment

In copyrights in the digital environment, Teresa Hackett, project manager at Electronic Information for Libraries (Rome), outlined key concerns for libraries. These include new layers of rights on information, the erosion of the public domain, restrictions from technological measures and from contracts, and a lack of compulsory licenses giving libraries access to information. These concerns are amplified in developing countries and could be addressed through the proposed Development Agenda, she said.

Ana Maria Cabanellas, a lawyer, publisher and head of editorial association in Buenos Aires, by contrast, called on WIPO to prevent exceptions to copyright rules, and highlighted the importance of copyright protection. She pointed to the loss of roughly 45 percent of the value of published works in Argentina due to the commonplace practice of photocopying books.

Horacio Gutierrez, associate general counsel at the Microsoft Europe, Middle East and Africa division based in Paris, took a positive tone in discussing open-source software, from which he said the software maker has “learned a tremendous amount” about what its users want. But he pointed out that even open source products depend on licenses. Gutierrez said open-source software is a phenomenon that will continue in the future, and in what he called a “move to the middle”, said Microsoft has introduced shared source programs and recognizes the need for training, as well as appropriate models for software delivery and financing mechanisms.

Competition Policy

In the area of competition policy, Martin Khor, director of the Third World Network, outlined issues from the perspective of public interest. Khor said WIPO has become the “predominant” forum for negotiations for new treaties on the harmonisation of intellectual property systems, bypassing the WTO. He also said “dysfunctional” intellectual property policy and practice in developed countries have been exported to the rest of the world through such harmonisation.

Khor touted a 2004 book entitled Innovation and Its Discontents, by Adam Jaffe and Josh Lerner, showing the increasing anti-competitive effects of intellectual property. He emphasized the importance of finding ways for developing countries to better benefit from intellectual property.

Philip Brusick, head of the competition and consumer policies branch at UNCTAD, discussed the necessary coherence between intellectual property rights and competition policy. He described uncompetitive situations that can arise due to monopoly practices and licensing requirements, but called for solutions to be driven by principles not emotions.

Peter Plompen, senior vice-president at Philips, said that a legal monopoly through intellectual property rights is not per se a market monopoly but may have an impact on the market for products or components. He also said settlements of disputes generally are more cost effective, that competition policy has a role in preventing cartels between competitors and other uncompetitive behaviour. Plompen concluded that “there is a lot wrong with the patent system and it should certainly be improved.”