A Philosophical Take On The Current Global IP Debate Meets Reality

BRUSSELS – A debate on intellectual property and the “knowledge commons” started out with a review of rhetoric and ideology here today but soon got more heated as the discussion turned to examples from real life, such as the patentability of maize.

The event is hosted by the Trans Atlantic Consumer Dialogue, a forum of 65 consumer organisations from the European Union and United States, which acts a consultative body. There are some 100 participants and although civil society groups are heavily represented, the presence of various industry representatives is providing grist for debate.

Bruce Lehman of the Washington-based Akin Gump, Strauss Hauer & Feld, and the former head of the US Patent and Trademark Office, called the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) “a failure” for the United States.

Lehman said that the United States agreed to provide market access to other countries with a comparative advantage in wages, leading to even cutting-edge US technology products being manufactured abroad. But while the United States has kept its part of the bargain, the advanced developing countries have not, he said. “It’s been a failure,” he said.

Lehman, who headed the USPTO when the TRIPS agreement took effect on 1 January 1995, said he would have introduce labor and environmental standards into the agreement so that manufacturing would not have left the United States. Lehman served under Democratic President Bill Clinton, and criticised the Bush administration’s ability to execute IP policy.

The debate heated up earlier in the day when Sangeeta Shashikant from the non-governmental Third World Network talked about how civil society groups have played a very important role in the current thinking on IP, saying that one could not talk about IP today without mentioning public health.

She said there is a “gene patent rush” and companies are trying to patent basic staple foods such as rice and maize. This is an attempt to gain ownership over material that for centuries has been shared by people, she said.

There is a “gold rush in the idea economy,” Shashikant said. She noted that the key pressure points were the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – especially the patenting of life forms and pharmaceuticals – the standard-setting exercises in the World Intellectual Property Organization (WIPO), and bilateral free trade agreements. Such agreements are “sold” to developing countries by promising technology transfers, foreign direct investment and innovation in return, Shashikant said. There is a need for greater awareness at the national level, she said.

Lehman took issue with Shashikant’s presentation. He argued that the TRIPS agreement requires novelty, so that neither maize nor the genome is patentable, and that using that example undermined Shashikant’s credibility.

Shashikant replied that she agreed that plants and living organisms should not be patented, but TRIPS left it up to governments to decide what could be patented, and thus maize and turmeric are indeed being patented today. There is a trend for allowing patenting in these areas, she said.

Lehman also took issue with a comment made by Sisule Musungu of the intergovernmental South Centre, who as a respondent said that developing countries have started to speak up more in WIPO, citing the current Substantive Patent Law Treaty discussions as an example.

Musungu said that when developing countries started making proposals, members of the WIPO secretariat and some countries showed “tremendous irritation” as “people who do not know about IP are telling us about patents.” Musungu said the developing countries were regarded as “confused people” who have “never worked in a patent office.”

Lehman said that the knowledge in the patent offices should not be belittled, as it takes expertise to know, for instance, that maize cannot be patented. Musungu replied that while patent offices have a role to play, it is no longer acceptable that a few people from patent offices “sit around and decide for the world.”

Musungu also said that while developed countries want strong IP rights, developing countries want market access, but he warned against the debate being between developed countries and high-income developing countries, leaving out the least-developed countries.

James Love, director of the Consumer Project on Technology, said it is a narrow perspective that higher and higher IP standards would be good for consumers in the north, with the north exporting IP to the south as users.

Musungu agreed, saying that the idea of northern countries having intellectual property as a comparative advantage does not take into account whether they preserve that advantage through the IP system.

Peter Drahos of the Australian National University said that it is important to distinguish between having a comparative advantage in innovation and exporting. It is “crazy” to think that one can institutionalize comparative advantage in innovation as this will move around, and therefore some countries cannot say that a certain set of rules will help any one in particular.

Susan Sell of George Washington University said that too much protection stifles innovation and is negative not only for consumers but also innovators. She said that while consumer groups had not been part of the Uruguay Round, now IP is no longer an “arcane technical issue” but about rights to food, education and medicines. She said the problem was not the TRIPS agreement per se but its application and the fact that developing countries are being pressured not to take advantage of its flexibilities.

Drahos talked about negative commons versus positive commons, with nobody owning anything but having the right to appropriate, or everyone is a joint owner but to appropriate one needs the consent of commons, respectively. He said one tends to forget that there is a lot of empirical evidence of positive commons with communities regulating and organising themselves.

Drahos also said that IP protection and benefits are not linear because as the innovation gets older, there is a peak point in gain, after which there will be a loss, thus at some points a patent does more harm in terms of economic gain.

Love said the meeting was about thinking in a more philosophical manner what the current IP debate is all about, referring to new rules for knowledge, considering what language was used, for example, such as “piracy” and “counterfeit” versus “access” and “sharing.” But interestingly, as the debate got more heated, participants used exactly these phrases.

After the morning debate, Jonathan Zuck of the Association for Competitive Technology said he felt like the “lamb invited to dinner” as he was a lobbyist representing the industry. He warned against a polarized debate in which substance was lost.