Interview with Graham Dutfield, Queen Mary College of the University of London 27/04/2006 by Intellectual Property Watch Leave a Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) The views expressed in this article are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors. Graham Dutfield is a legal researcher at the Queen Mary College of the University of London. He is a supporter of traditional knowledge protection and a critic of the anti-development and anti-consumer orientation of current trends in intellectual property rule-making. He sat down with Intellectual Property Watch during the 24-28 April meeting on these issues at the World Intellectual Property Organization. Dutfield discussed the issues’ importance, and criticised several US lobbying groups representing the biotechnology and pharmaceutical industries for spreading dishonest and unsubstantiated “propaganda.” Intellectual Property Watch (IPW): In the context of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), you have a new paper. What is your perspective on this meeting and some of the key issues? DUTFIELD: Well, first what I would say is that having worked in the field of traditional knowledge [TK] for so many years, I’m really amazed that it’s even being discussed in Geneva anyway. Going back so many years, it was something that a small number of us were actually saying, that we need to have some sort of international solution on TK, and finally we’re having a substantive debate with a real possibility there could be some kind of probably non-binding agreement on protection of traditional knowledge and cultural expressions. “The intention behind harmonisation of substantive patent law is in part, not wholly, to prevent today’s developing countries from doing what today’s developed countries were freely able to do when they were developing countries.”I always used to think that would be wonderful if that happened, and now that it’s happening I’m becoming a bit worried. That’s because Geneva is really such a faraway place from the rest of the world, and particularly when you think that traditional knowledge holders are barely [present] in this discussion. We’re a long way from the Amazon, we’re a long way from Siberia, we’re a long way from India, from Africa. I think this whole discussion would mean very little to most people in those parts of the world. I see that developing and developed countries are quite happy to discuss these matters in a very top-down sort of way. I think diplomats have much in common with each other, wherever they’re from in the world, and all the time I think the more they talk the less real the discussion becomes. That’s not to say WIPO doesn’t produce some very good technical documents. But I there is too much of an IP focus in this whole discussion. When you talk about patents, it becomes inevitably linked to other trade-related issues that don’t have much to do with traditional knowledge. That suits me personally because I love talking about patents and I think it’s extremely important. It’s just that it’s not that important to TK holders, it has a wider importance. I think in terms of the effect on people’s lives, the discussion on patent law harmonisation is probably more important than anything that might be achieved here on traditional knowledge. That’s because the link between patents and health and food security and industrial development are very clear, and I think the impacts of a particular legally binding settlement on patents are quite important. I can’t help thinking that the decision to postpone further discussion on the SPLT [proposed WIPO Substantive Patent Law Treaty] is perhaps better news for developing countries than anything that might be agreed at this particular meeting. The intention behind harmonisation of substantive patent law is in part, not wholly, to prevent today’s developing countries from doing what today’s developed countries were freely able to do when they were developing countries. When I spoke at the open forum, I deliberately in my presentation talked about a patent law that actually worked. A lot of the rhetoric now is extremely crude, especially from some organisations based in Washington right now. If you are critical of harmonisation, you are anti-patent or anti-IP, which just isn’t true of nearly all people engaged in this debate. Why is it important that countries are given some freedom to tailor their patent regimes to their perceived national interests? Because patents are a tool of industrial policy, and it’s a matter of national sovereignty that you are able to have industrial policy that you think suits your national economy. It’s a bit of a cliché that your levels of patent strength should somehow relate to levels of development. I think that is only partly true. Historical experience shows that countries were able to take advantage of stronger patent regimes in the developed countries. If you look back historically, you find that Britain and France in the 19th century allowed chemicals to be patented, and Germany only certain processes, in Switzerland there were no patents at all. So the Germans could copy from the British and French, and the Swiss could copy from the Germans. Is copying always wrong? In my view you cannot say that copying is always wrong. Copying is how you learn. You have to allow a certain amount of copying, that’s how people learn, children learn through copying, and scientists learn how to do science by copying, and today’s large industrial corporations started off by copying, most of them did. “A lot of the rhetoric now is extremely crude, especially from some organisations based in Washington right now. If you are critical of harmonisation, you are anti-patent or anti-IP, which just isn’t true of nearly all people engaged in this debate.”A lot of rhetoric from Washington appears to be not only to ensure the United States patent system provides a sort of model for the rest of the world, but also that the “integrity” of the patent system is protected from those who would like the patent system not to even exist. Unfortunately, that isn’t true, but also the rhetoric is almost hysterical in tone, and not even honest. There’s a lot of dishonesty behind the rhetoric. To give one example, and let’s name some names here, an organisation called the Pacific Research Institute came up with a study on economic losses for about 25 developed countries from what they called a patent-based access and benefit sharing regime. The dishonesty lies in the fact that the study appears to be scientific, and yet the methodology is completely opaque, in other words, they have not said how they came up with the estimates. So while they want to protect the integrity of the patent system, their defence would convince nobody who knows anything about economics. In the same way, the American BioIndustry Alliance is arguing that disclosure of origin of genetic resources and traditional knowledge in patents would act as a disincentive for bioprospecting by creating legal uncertainty. Given that the US patent system is inherently legally uncertain in part because the examinations are inadequate and industry is willing to accept the present state of the US patent system, to accept the status quo, to argue that disclosure of origin creates legal uncertainty seems a weak one. As somebody who has been somewhat sceptical of disclosure of origin himself, I would have expected industry, if they are opposed to disclosure of origin, to come up with better reasons. I’m left to suspect that industry doesn’t really care that much and that lobbyists may be trying to seek work for themselves by scaremongering. IPW: It seems to me that these lobbying groups say they can show evidence that companies have pulled out of or not invested in areas because of the lack of legal certainty related to disclosure of origin. DUTFIELD: The evidence is anecdotal. It is plausible that there is a chilling effect because of the fear of being accused of biopiracy and the ABS regulations that many countries have introduced. But I haven’t seen any evidence yet that it really exists. I would say, be honest enough to admit that we can’t prove it, rather than showing us fancy tables which are pure propaganda. IPW: So then is the way forward to get agreement on an international standard for these things, or is the contract-based approach pushed by industry the more effective way? If they are concerned about uncertainty, shouldn’t they agree with the certainty of an international regime? DUTFIELD: I don’t believe that the contract-based approach by itself solves much. Norway wants an international regime because they want access and this might provide the legal certainty. Norway already has a disclosure of origin law. They say it is because they want the access, and this can provide the legal certainty and build trust. As for industry, look for instance at the International Chamber of Commerce. They’re not saying there shouldn’t be disclosure of origin, there shouldn’t be an international regime. But they’re sceptical about disclosure of origin not because they think it would do any harm but that they worry that it would do any good. And actually I feel the same way about disclosure of origin, I wonder if it would do any good. I don’t think it would do any harm, but I just wonder if it would do as much good as its proponents think, in any form. The most promising approach would be to require patent applicants to provide evidence that the sources of knowledge were acquired legally but not to be part of the substantive examination of validity of the patents. It should be separate from determination of the validity of the patents, it should be part of the administrative requirements. If it turns out that that proof was not submitted and the patent was subsequently granted, then that patent should be made unenforceable. The Andean Community has passed legislation on that, also India. IPW: Which forum do you think is the best for discussion of these issues? DUTFIELD: I think if countries really want to go ahead with disclosure of origin, they should handle all the technical elaboration and discussion here at WIPO and then they should take it to the WTO. But I don’t think the WTO itself is a place where that sort of discussion should take place. It should take place here and then be moved to WTO once there is a certain consensus on what version of disclosure of origin ought to be followed and whether or not it would require some sort of amendment to TRIPS. IPW: How critical is it that the IGC meeting make progress; what is the significance of this meeting? DUTFIELD: I don’t think it’s critical to anyone’s lives that there is progress made here, in the committee at all. I think those governments that care enough about protection of traditional knowledge must explore national and local measures. I accept that there does need to be an international agreement of some kind, but it should not be to the exclusion of working at particularly the local level. If management of a regime is done at the most local level possible, you’re more likely to come up with a solution, and also any regime, whether it’s legally binding or not, must be based on the values and interests of local people. I don’t think the IGC has the capacity to actually do that. So maybe Norway is right that a declaration is a good start here, rather than work toward a legally binding regime which may actually suit the interest of nobody in the long term, especially the holders of traditional knowledge. IPW: Developing countries see this as a critical committee to them, as a place to make progress on key issues to them. If there is little progress here, is this almost less than helpful to developing countries because after all, things that developed countries don’t want to make progress on can be ‘parked’ here with the assurance that nothing will happen on them while they can claim that these are being addressed in the proper place? DUTFIELD: One good thing about the IGC is that it has indirectly thwarted the SPLT process, because it has shown the developing countries that there are certain issues loosely in the area of biodiversity that they can agree on. Therefore, it makes possible for them to insert their own counterproposals in the SPLT derived from the discussions taking place here, and in doing so, have managed to throw a spanner in the SPLT works in a very effective manner. It has enabled them to actually stop the SPLT process without actually saying we are against the SPLT process. I half rejoice, and I half feel a little sad, and that’s because I don’t think traditional knowledge holders should be pawns in wider debates. Nonetheless, I do think the SPLT is of such importance that in this particular case I can sort of live with that. IPW: The move in recent years has been toward greater protection for rightsholders in developed countries in bodies such as WIPO. And as you just said a committee such as this can be useful for slowing that move. But when and how do developing countries get greater progress on their own goals? “I’m left to suspect that industry doesn’t really care that much [about disclosure of origin] and that lobbyists may be trying to seek work for themselves by scaremongering.”DUTFIELD: On balance, I think the IGC process is a good thing because it provides a lot of very technically sound ideas that countries can take back home and put into effect, and some of those are very good ones and very workable. That makes the whole process worthwhile in itself. But how can they actually get what they want? I think the problem is as they say, beware of getting what you want. The problem for developing countries is they are still tending to be reactive rather than proactive. There are very good reasons why that happens. Lack of capacity is one thing. Also lack of unity, because developing countries are a very disparate group of countries that are so much more varied than developed countries which have fairly similar interests in a lot of areas. Developing countries are extremely varied, you have the large developed countries, the small developed countries, the very advanced developing countries and the relatively backward ones, and their interests are quite different. It’s easy to exploit their differences in order to drive a wedge between them. It’s easy to do and it happens all the time. And certain countries get more stigmatised. The rhetoric from Washington is that China, India and Brazil are the axis of IP evil, and that in part has the effect of making other developing countries think, ‘ah, they’re different from us. They seem to following a strategy that doesn’t necessarily suit us.’ Also, ‘we don’t want to be tarred with the same brush’. Basically divide and rule. So they’re very reactive, and no matter what they do, the United States and Europe have other ways to make them do what they’re told. A victory here always leads to a backlash. “Given that the US patent system is inherently legally uncertain in part because the examinations are inadequate and industry is willing to accept the present state of the US patent system, to accept the status quo, to argue that disclosure of origin creates legal uncertainty seems a weak one.”… I just wish industry would be honest. When I say that, I am saying that some of the propaganda is either too dishonest or doesn’t make any sense, and that is the problem. It’s actually the lobbying groups that represent industry, they are not industry. And industry ought to be thinking about whether the people who speak on their behalf are really the people they want to speak on their behalf. Industry is sometimes very poorly represented by organisations that go to international meetings speaking for industry. Graham Dutfield’s current position is Herchel Smith Senior Research Fellow at Queen Mary University of London. He previously worked for International Centre for Trade and Sustainable Development for whom he wrote a paper on traditional knowledge that was presented in Geneva on 26 April. He has written four books including Intellectual Property Rights and the Life Science Industries: A Twentieth Century History. 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