14 September 2002
important new study shows the promise, and pitfalls, of intellectual-property
rights for the poor
rights (IPR), which embrace patents, copyright, trademarks and trade
secrets, were once considered an esoteric, and slightly dull, bit
of commercial law.
Today, IPR law is the focus of intense interest, and it is not just
lawyers who are paying attention. The original purpose of patents
was to encourage innovation, and thus growth, by creating an incentive
for inventors to disclose the details of their inventions in exchange
for a limited monopoly on exploitation. Some argue that the modern
system of IPR law is having the opposite effect-delaying the diffusion
of new technology.
Barton, a law professor at Stanford University, wants to see both
rich and poor countries start thinking of IPR more as a development
tool, and for them to reconsider the notion that strongly protecting
the rights of inventors is automatically good for all. For the past
year, Dr Barton has chaired the Commission on Intellectual Property
Rights, a body of lawyers, academics, a bio-ethicist and an industry
executive convened by Britain's Department for International Development
to look at how IPR can work to the benefit of the world's poor countries.
report, published on September 12th, sets out detailed recommendations
for how developing countries should craft IPR to suit their conditions.
Its central message is both clear and controversial: poor places should
avoid committing themselves to rich-world systems of IPR protection
unless such systems are beneficial to their needs. Nor should rich
countries, which professed so much interest in "sustainable development"
at the recent summit in Johannesburg, push for anything stronger.
was a time when countries could go their own way on intellectual-property
rights, and introduce legal protection for creators whenever they
thought it appropriate. For most of the 19th century, America provided
no copyright protection for foreign authors, arguing that it needed
the freedom to copy in order to educate the new nation. Similarly,
parts of Europe built their industrial bases by copying the inventions
of others, a model which was also followed after the second world
war by both South Korea and Taiwan.
however, developing countries do not have the luxury to take their
time over IPR. As part of a trade deal hammered out eight years ago,
countries joining the World Trade Organisation (WTO) also sign up
to TRIPS (trade-related aspects of intellectual-property rights),
an international agreement that sets out minimum standards for the
legal protection of intellectual property. The world's poorest countries
were given until 2006 to comply in full with the requirements of the
to popular perception, TRIPS does not create a universal patent system.
Rather, it lays down a list of ground rules describing the protection
that a country's system must provide. These extend IPR to include
computer programs, integrated circuits, plant varieties and pharmaceuticals,
all of which were unprotected in most developing countries until the
agreement. Patent rights are valid no matter whether the products
are imported or locally produced, and protection and enforcement must
be extended equally to all patent holders, foreign and domestic.
many poor countries feel that TRIPS gives them a raw deal-all cost
and scant benefits-few want to see the agreement dismembered or removed
from the WTO, according to Rashid Kaukab, at the South Centre, a think-tank
based in Geneva. That is largely for fear of what might take its place.
Instead, a few developing countries, such as India and Brazil, are
starting to flex their muscles when it comes to the battle between
western standards of IPR protection and matters of public interest,
such as health and farming. As the commission points out, the wording
of TRIPS gives poor countries considerable latitude to look out for
themselves when introducing new systems of IPR protection. It also
suggests a few ways that they can make the most of this flexibility
in a number of important areas:
Much of the recent debate over the impact of IPR on the poor has centred
on the issue of access to expensive medicines. On paper, many of the
world's least-developed countries have laws which provide patent protection
for pharmaceuticals. In practice, few enforce them. Spurred on by
a victory in April 2001 against drug companies fighting patent reform
in South Africa, developing countries issued a declaration at the
WTO meeting in Doha last year. This asserted the primacy of public
health over IPR. They resolved that the world's least-developed countries
should be given at least until 2016 to introduce patent protection
17th, the WTO council responsible for TRIPS will consider a far trickier
proposition in the declaration: how to make compulsory licensing (the
manufacture and marketing of a patented drug without the patent-holder's
consent) work for the poorest. TRIPS already permits compulsory licensing
under certain conditions, including national emergencies. This is
fine for countries such as Brazil, which have domestic drug industries
to copy the medicines. Brazil has, indeed, used the threat of compulsory
licensing to wring price discounts out of drug companies, a ploy which
the commission, somewhat controversially, supports.
is what to do with countries which have no drug makers. For the moment,
they can import generic copies from the likes of India, but come 2006,
when those exporters are supposed to have fallen in with the TRIPS
line, who will supply the drugs?
and research Alan Story, a specialist in IPR at the University of
Kent, in Britain, reckons that copyright, particularly as it pertains
to education and research, will be the next big battleground. Those
countries that have signed up to TRIPS have also accepted international
copyright rules. Although these allow some unauthorised copying for
"fair use" or personal consumption for education or research,
the commission worries that these exceptions are too limited, and
that copyright may hamper access to textbooks, journals and other
educational material in poor countries, by requiring the consent of,
and likely payment to, the publisher prior to copying.
is even more worried about the Internet, which has great potential
for broadening access to education in poor countries, but in which
encryption technologies can override the principle of fair use. Some
publications, such as the British Medical Journal, allow free online
access for people in poor countries. The commission would like to
see more of this.
In the meantime, it recommends that developing countries allow users
to sneak round technical barriers such as encryption, to gain access
for fair use. Not surprisingly, software makers are unenthusiastic.
knowledge The most glaring conflict between rich and poor over intellectual
property comes from the is appropriation of "traditional knowledge"
- such as ancient herbal remedies that find their way into high-priced
western pharmaceuticals without the consent of, or compensation to,
the people who have used them for generations. Often, patent examiners
are simply unaware that the plant variety which an enterprising businessman
is trying to patent has been used for centuries by a tribal community
half a world away. The commission recommends that countries create
databases to catalogue such traditional knowledge (India is already
doing so), and urges that consulting such databases should be made
a mandatory part of patent examinations the world over.
than this, however, Kamal Puri, a lawyer at the University of Queensland,
Australia, argues that new systems of IPR protection are needed for
traditional knowledge. That is because its communal ownership, uncertain
date of creation and unwritten form does not fit the requirements
of western systems of IPR. On September 17th, a model law, drafted
by Dr Puri and co-sponsored by UNESCO, will be unveiled at a meeting
of Pacific island states in New Caledonia. The law gives traditional
users jurisdiction over native knowledge, and requires that those
who wish to commercialise it must seek the users' consent. All transactions
must be registered with a tribal authority, which will deal with subsequent
when armed with these weapons, poor countries will have a hard time
deploying them. Drafting IPR legislation and setting up a patent office
that has modern information-technology systems and trained examiners
does not come cheap or easy. Neither does establishing judicial, customs
and competition authorities, and police services to enforce IPR rules.
The World Bank reckons that it costs at least $1.5m to create a working
system, plus recurrent costs.
inventors in poor countries find it tough to use patent systems in
the rich world. Merely securing a patent from America's patent office
costs at least $4,000. Defending it in court can cost millions. The
commission identifies several ways in which rich countries could open
their domestic IPR systems, including discounted fees and subsidised
technical assistance. It also suggests they should help poor countries
to set up their own systems without saddling them with rich-world
standards until they are ready to benefit from them. Inventing a way
to do that might be worth a patent in its
own right. Those who heed the commission's report, however, might
well resist the claim.
The Economist Newspaper Limited, London, 14 September 2002.
The Economist kindly waived its fee for permission to use this article.