WIPO Director Calls For “Re-Thinking” Intellectual Property

World Intellectual Property Organization Director General Francis Gurry last week issued a call for a redefinition of the functions of the IP system in the context of a fast-changing and globalised world.

Gurry said that a wider view of the role of IP rights is necessary in order to adjust the IP regime to the complexities of an environment where new media and shifts of political and technological powers are creating new competing interests.

“It is increasingly anachronistic to consider IP as standing for one set of interests only,” Gurry said in a 22 August speech at the University of Melbourne, Australia. “It [is] the means to reconcile all those divergent interests.”

Although IP has traditionally served as a trade-off between interests of creators, inventors and different societal needs, “the new context requires the reconciliation of interests to be much more explicit and to be considered in relation to a range of issues and details at a much more granular level than that of the system itself.”

In his speech, Gurry described the traditional foundations of the IP system. He explained that IP rights have been created to serve as an economic incentive to invest in knowledge creation as well as to grant the moral and material interests of a creator to protect his works. Specific IP rights, such as patents, are also meant to disclose information in exchange for exclusive rights over new innovations, while trademarks and geographical indications act as signals in the marketplace to ensure correct information between producers and consumers.

However, the shift of the centre of wealth from tangible to intangible assets, the increasing importance of East Asian countries in the geopolitical and technological arena, and the end of state monopoly on information thanks to the rise of social media call for a redefinition of the IP role in today’s economy, he said.

He noted that the internet played a crucial role in empowering non-state actors by easing the coordination of protests against specific IP legislations – such as the US Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA), and the Anti-Counterfeiting Trade Agreement (ACTA).

“I do not believe that any of these developments invalidate the traditional bases of IP,” he said. “But we do need to recognize that the mission of IP is much larger and more sophisticated than any one of the individual bases alone might suggest.”

In the new global environment, Gurry suggested that IP should play a number of additional functions. Particularly, IP should operate as a regulator of competitive behaviour. Given the importance of IP tools in capturing and securing comparative advantage deriving from intangible assets, IP is at the centre of attention of both states and enterprises. Specifically, concerns arise from increasing violations of trade secrets through espionage and patent litigation in the field of smartphone technologies.

Gurry also stressed the role of patent assertion entities in the so-called “patent wars.”

“In the litigation wars, a terrorist has entered the ranks, effecting indiscriminate collateral damage. This is the patent troll, more politely known as a patent assertion entity,” Gurry said.

“The problem, however, is that no one knows how to define this phenomenon and to say where the legitimate evolution of technology markets […] ends and where undesirable behaviour that puts innovation at risk commences,” he added.

IP as Fulcrum

The WIPO director general also highlighted the need for IP to operate as a mechanism for finding equilibrium among competing interests. In an interconnected and globalised world, decisions surrounding innovation and creation have widespread consequences on the global IP policy framework and on various IP stakeholders. Given the multilayered interests of producers and consumers of knowledge, creators and societal values, production and sharing of information, “[a] balancing act has to be performed,” he said.

Gurry described the major themes of concern for the evolving IP world. First, he envisaged a growing tension over the concept of ownership and entitlement to IP rights in the domains of trade secrets and open innovation. Particularly, the debate over entitlement is foreseen to become more animated due to “the rise in importance of espionage and the illicit appropriation of trade secrets and confidential information,” an area of IP “in great need of attention.”

“But giving it multilateral attention will not be easy. It is a difficult sell to promote secrecy in an age of transparency,” Gurry stated.

At the same time, additional questions may arise from debates over the desirability of giving exclusive rights over some scientific developments.

“The boundary between science and technology, or discovery and invention, is more and more difficult to draw, […] as the recent parliamentary and judicial attention given to gene patenting has shown,” he said.

The same reasoning applies to trademark law and the doubts over the possibility for companies to claim private rights over words, colours, signs and symbols.

In parallel, IP rights in the fields of life sciences and digital technology raise similar “appropriability” issues, he said. In fact, according to Gurry, the development of more sophisticated imitation technologies creates a “disjunction between the cost of production, on the one hand, and the cost of reproduction, on the [other] hand.”

The rising role of new media in providing access to information to the public may also create tensions between the IP capability of making access a “saleable commodity” and the consequent social tensions over access price.

“It is unlikely that the tension around access will subside,” Gurry added.

In conclusion, the new IP environment creates specific risks for policy-making activities. According to Gurry, multiple processes at multiple levels and the lack of coherence between multilateral, plurilateral and national processes may hamper the possibility to take decisions – leaving the initiative to the private sector – and favour policy answers inadequate to the size of the problems.

Gurry explained that discussions at the multilateral level risk may be put on hold as long as plurilateral process – such as the Trans Pacific Partnership talks – are not concluded. To the contrary, he said that all policy-making processes should fit into another like Russian dolls, with “presumably, the multilateral level being the biggest doll […] because all others should conform to it.”