Time For Human Rights To Enter Into IP Policy Dialogue, Panel Says

Ensuring the right to development should become more integral to debates over intellectual property policy, said members of a panel last week. The World Intellectual Property Organization Development Agenda will play a crucial role in ensuring this integration if it happens, they added.

It is “ironic that there is this gap between the fora that discuss intellectual property rights and [those that discuss] right to development. They follow an overlapping agenda in terms of substance,” said Sakiko Fukuda-Parr, a member of the UN High Level Task Force on the Right to Development, which is reviewing different development initiatives using a set of criteria it developed (Intellectual Property Watch coverage of the reviews is available at IPW, Human Rights, 15 May 2009 and 3 April 2009).

Intellectual property has “been isolated from developments happening elsewhere in human rights,” said Mohammed Gad, from the permanent mission of Egypt. Within IP are “some of the oldest institutional, treaty-based systems to regulate multilateral activity,” but it has been isolated as quite technical, the “domain of lawyers.”

However, “we are at a juncture of realisation of this isolation,” a process that perhaps began two decades ago, Gad added.

The WIPO Development Agenda “is one of the most important – if not the most important – projects in advancing the right to development,” said Fukuda-Parr.

They were speaking at side event to the WIPO Committee on Development and Intellectual Property on 19 November. It was hosted by the UN Conference on Trade and Development and the International Centre for Trade and Sustainable Development.

So far the greatest achievement of the Development Agenda is a built-in mechanism for WIPO “so when we lend technical assistance [or] legislative advice, something tells us to think in a broader, development perspective,” said Carlos Mazal, senior counsellor at the organisation, who was speaking in a personal capacity.

Intellectual property rights matter because technology matters, said Fukuda-Parr. Technology, she said, “has driven human progress from” the earliest of times, from the printing press to genetically modified seeds. “It’s hard to think of the food, climate or financial crisis being resolved without technology as an input,” she said.

Technological upgrades are the “driver for people to free themselves from grinding poverty [and is therefore] an essential element of national development strategy,” as can be seen in the success stories of the last century, such as South Korea and Singapore, said Fukuda-Parr. “Therefore IP is a tool that states can use to harness the power of technology to fulfil [their] obligations to meet human rights.”

The responsibility of the state is important, said Mazal. “I think if people think when we [WIPO] go to a country we can change their mind about an issue it’s an over-estimation of the impact of a single WIPO expert.”

“The right to development is part of human rights,” said Ayuush Bat-Erdene, who is in charge of the Right to Development Unit, the Office of the High Commissioner for Human Rights. In the twentieth century, there has been a shift from growth-oriented to human-oriented development, he added, saying “states have the primary responsibility to create national and international environments for” the realisation of the right to this development.

But the World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement “has made technology upgrading more difficult as processes that were used in the past, such as reverse engineering, are no longer possible,” Fukuda-Parr cautioned.

Until the 1970’s, leading industrialised countries such as Holland, Italy, and Spain did not protect pharmaceutical patents, said Gad. “The core essence that levels of development need to be taken into account is still new to IP policy discussions,” he added.

Fukuda-Parr added that the WIPO Development Agenda is a “breakthrough initiative” that might help.

Mazal cautioned against delays in implementation, however. “IP is everywhere [and] if we go into detail about everything, we will never implement,” he said, adding it is necessary “to land some of these things, [to] move beyond rhetorical exercise.” This means negotiations have to be faster.

“One of the difficulties that I have observed in negotiations is that more and more you have a multiplicity of stakeholders … we’re all for democratic and open and transparent [but at the] end of the day negotiations are extremely, extremely hard.” Member states should take the positions of their constituents, including both civil society and industry, into account before they come to negotiations, he said. “We should not delay implementation of the agenda for development.”

WIPO should also pay more attention to its role as a UN agency, and therefore its responsibility to the Millennium Development Goals (MDGs), said Gad. WIPO should let the UN General Assembly, which is the guardian of the MDG’s, know how the Development Agenda is progressing, he added.

There’s “a light at the end of the tunnel … but we need to be careful where it will go,” said Gad. The critical balance that needs to be maintained, he said, is social versus private rights.

“When this balance was no longer maintained with banks, we got a financial crisis,” he said. “We don’t want to have an innovation crisis.”