Integrating

Intellectual Property Rights

and Development Policy

 

 

 

 

 

 

 

 

Report of the Commission on Intellectual Property Rights

 

 

 

 

 

 

 

 

 

 

 

 

London

September 2002


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Published by

Commission on Intellectual Property Rights

c/o DFID

1 Palace Street

London SW1E 5HE

 

Tel: 020 7023 1732

Fax: 020 7023 0797 (for the attention of Charles Clift)

Email: ipr@dfid.gov.uk

Website: http://www.iprcommission.org

 

November 2002 (2nd Edition)

 

The full text of the report and the executive summary can be downloaded from the Commission website: http://www.iprcommission.org 

 

For a hard copy of the report or further information please contact the Commission Secretariat at the above address.

 

© Commission on Intellectual Property Rights 2002

 

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THE COMMISSIONERS

 

Professor John Barton (Commission Chair)

George E. Osborne Professor of Law, Stanford University, California, USA

 

Mr Daniel Alexander

Barrister specialising in Intellectual Property Law, London, UK

 

Professor Carlos Correa

Director, Masters Programme on Science and Technology Policy and Management, University of Buenos Aires, Argentina

 

Dr Ramesh Mashelkar   FRS

Director General, Indian Council of Scientific and Industrial Research and Secretary to the Department of Scientific and Industrial Research, Delhi, India

 

Dr Gill Samuels   CBE

Senior Director of Science Policy and Scientific Affairs (Europe) at Pfizer Inc., Sandwich, UK

 

Dr Sandy Thomas

Director of Nuffield Council on Bioethics, London, UK

 

 

 

 

THE SECRETARIAT

 

 

Charles Clift – Head

 

Phil Thorpe – Policy Analyst

 

Tom Pengelly – Policy Analyst

 

Rob Fitter – Research Officer

 

Brian Penny – Office Manager

 

Carol Oliver – Personal Assistant


PREFACE

 

 

Clare Short, the Secretary of State for International Development, established the Commission on Intellectual Property Rights in May 2001.  We are made up of members from a diversity of countries, backgrounds and perspectives. We have each brought very different viewpoints to the table.  We incorporate voices from both developed and developing countries: from science, law, ethics and economics and from industry, government and academia. 

 

I believe that it is a considerable achievement that there is so much that we have been able to agree on about our approach and our basic message.  As our title implies, we consider that development objectives need to be integrated into the making of policy on intellectual property rights, both nationally and internationally, and our report sets out ways in which this could be put into practice.     

 

Although appointed by the British Government, we have been given absolute freedom to set our own agenda, devise our own programme of work, and come to our own conclusions and recommendations.  We have been given the opportunity and financial support to improve our understanding of the issues through commissioning studies, organising workshops and conferences, and visiting officials and affected groups throughout the world.  We have been supported by a wonderfully capable Secretariat supplied by the DFID and the UK Patent Office, and we want to thank them especially.

 

We first met on 8-9 May 2001, and have held seven meetings since.  All or some of us have visited Brazil, China, India, Kenya, and South Africa, and we have consulted with public sector officials, the private sector and NGOs in London, Brussels, Geneva, and Washington.  We visited the Pfizer research facility in Sandwich.  A list of the main institutions we have consulted appears at the end of the report.  We have commissioned seventeen working papers and held eight workshops in London on various aspects of intellectual property.  And we held a large conference in London on 21-22 February 2002 to ensure that we could hear questions and concerns from many perspectives.  We regard these sessions as important parts of our work in their own right.  They brought together a range of individuals with a view to facilitating dialogue and exploring the scope for moving some of the issues forward.          

 

On behalf of all of us I want to thank all those people from all over the world, far too numerous to mention, who provided input to our discussions and who prepared working papers.     

 

Our tasks were to consider:

 

·        how national IPR regimes could best be designed to benefit developing countries within the context of international agreements, including TRIPS;

 

·        how the international framework of rules and agreements might be improved and developed – for instance in the area of traditional knowledge – and the relationship between IPR rules and regimes covering access to genetic resources;

·        the broader policy framework needed to complement intellectual property regimes including for instance controlling anti-competitive practices through competition policy and law.      


We decided early on not just to attempt to suggest compromises among different interest groups, but to be as evidence-based as possible.  This has been challenging, for there is often limited or inconclusive evidence, but our Secretariat, extensive consultations, and the papers we commissioned, helped us in identifying the available evidence, which we then carefully evaluated.  

 We also recognised early on the importance of distinguishing nations (middle or low income) which have substantial scientific and technological capability from those which do not.  We attempted to learn about the real impacts of intellectual property, both positive and negative, in each of these groups of nations.  We chose to concentrate on the concerns of the poorest, both in low and middle income nations.


We all concur in this report.  Our aim is practical and balanced solutions.  In some cases we have adopted suggestions made by others but the responsibility for the conclusions is ours alone.  We hope that we have fulfilled our task and that the report will be a valuable resource to all those engaged in the debate on how intellectual property rights might better serve to promote development and reduce poverty.             

Finally I want to thank Clare Short, and the UK Department for International Development, for their foresight in creating the Commission on Intellectual Property Rights.  I have been honoured to chair it.  It has been an extraordinary experience for me, and for all of us on the Commission.   We received a challenging remit.  We greatly enjoyed our task and the opportunity to learn from one another and, in particular, from the many who have contributed to our work. 

 

 

JOHN BARTON

Chairman


FOREWORD

 

 

 

There are few concerned with IP who will find that this report makes entirely comfortable reading.  No greater compliment can be paid to Professor Barton and his team of Commissioners.  Nor can there be any greater indication of the foresight and courage of Clare Short, the UK Secretary of State for International Development, in creating the Commission and setting its terms of reference in the first place.

 

Perhaps there is something about the era we live in that has encouraged blind adherence to dogma.  This has affected many walks of life. It certainly has affected the whole area of intellectual property rights.  On the one side, the developed world side, there exists a powerful lobby of those who believe that all IPRs are good for business, benefit the public at large and act as catalysts for technical progress. They believe and argue that, if IPRs are good, more IPRs must be better.  On the other side, the developing world side, there exists a vociferous lobby of those who believe that IPRs are likely to cripple the development of local industry and technology, will harm the local population and benefit none but the developed world.  They believe and argue that, if IPRs are bad, the fewer the better.  The process of implementing TRIPS has not resulted in a shrinking of the gap that divides these two sides, rather it has helped to reinforce the views already held.  Those in favour of more IPRs and the creation of a “level playing field” hail TRIPS as a useful tool with which to achieve their objectives.  On the other hand those who believe that IPRs are bad for developing countries believe that the economic playing field was uneven before TRIPS and that its introduction has reinforced the inequality.  So firmly and sincerely held are these views that at times it has appeared that neither side has been prepared to listen to the other.  Persuasion is out, compulsion is in.

 

Whether IPRs are a good or bad thing, the developed world has come to an accommodation with them over a long period.  Even if their disadvantages sometimes outweigh their advantages, by and large the developed world has the national economic strength and established legal mechanisms to overcome the problems so caused. Insofar as their benefits outweigh their disadvantages, the developed world has the wealth and infrastructure to take advantage of the opportunities provided.  It is likely that neither of these holds true for developing and least developed countries.

 

It is against that background that the Secretary of State decided to set up the Commission and ask it to consider, amongst other things, how national IPR rights could best be designed to benefit developing countries.  Inherent in that remit was the acknowledgement that IPRs could be a tool which could help or hinder more fragile economies.  The Commissioners themselves represent as impressive a cross-section of relevant expertise as one could wish.  They have consulted widely. This report is the result.  It is most impressive.

 

Although the terms of reference have required the Commission to pay particular regard to the interests of developing countries, it has done this without ignoring the interests and arguments of those from the other side.  As it states, higher IP standards should not be pressed on developing countries without a serious and objective assessment of their development impact.  The Commission has gone a long way to providing such an assessment. This has produced a report which contains sensible proposals designed to meet most of the reasonable requirements of both sides.

 

However, the production of a series of workable proposals is not enough by itself. What is needed is an acceptance and will to implement them.  Once again, in this respect the Commission is playing a major role.  This is not the report of a pressure group. The Commission was set up to offer as impartial advice as possible.  Its provenance and makeup should encourage all those to whom it is directed to take its recommendations seriously.

 

For too long IPRs have been regarded as food for the rich countries and poison for poor countries.  I hope that this report demonstrates that it is not as simple as that.  Poor countries may find them useful provided they are accommodated to suit local palates.  The Commission suggests that the appropriate diet for each developing country needs to be decided on the basis of what is best for its development, and that the international community and governments in all countries should take decisions with that in mind.   I very much hope this report will stimulate them to do so.

 

 

SIR HUGH LADDIE

UK High Court Patents Judge

 

 

 


TABLE OF CONTENTS

 

 

 

THE COMMISSIONERS                                                                                                      ii

 

PREFACE                                                                                                                             iii

 

FOREWORD                                                                                                                                      v

 

OVERVIEW                                                                                                                            1

INTRODUCTION                                                                                                                     1

BACKGROUND                                                                                                                      2

OUR TASK                                                                                                                              6

 

Chapter 1: INTELLECTUAL PROPERTY AND DEVELOPMENT                           13

INTRODUCTION                                                                                                                   13

THE RATIONALE FOR IP PROTECTION                                                             15

Introduction

Patents

Copyright

HISTORY                                                                                                                                20

THE EVIDENCE ABOUT IP                                                                                                23

The Context

Redistributive Impact

Growth and Innovation

Trade and Investment

TECHNOLOGY TRANSFER                                                                                               28

 

Chapter 2: HEALTH                                                                                                                       34

INTRODUCTION                                                                                                                   34

The Issue

Background

RESEARCH AND DEVELOPMENT                                                                                 37

Research Incentives

ACCESS TO MEDICINES FOR POOR PEOPLE                                                           40

Prevalence of Patenting

Patents and Prices

Other Factors Affecting Access

POLICY IMPLICATIONS                                                                                                      46

National Policy Options

Compulsory Licensing for Countries with Insufficient Manufacturing Capacity

Developing Country Legislation

Doha Extension for Least Developed Countries

 

 

 

 

 

 

 

Chapter 3: AGRICULTURE AND GENETIC RESOURCES                                      65

INTRODUCTION                                                                                                                   65

Background

Intellectual Property Rights in Agriculture

PLANTS AND INTELLECTUAL PROPERTY PROTECTION                                         67

Introduction

Research and Development

The Impact of Plant Variety Protection

The Impact of Patents

Conclusion

ACCESS TO PLANT GENETIC RESOURCES AND FARMERS’ RIGHTS                76

Introduction

Farmers’ Rights

The Multilateral System

 

Chapter 4: TRADITIONAL KNOWLEDGE

                  AND GEOGRAPHICAL INDICATIONS­                                                         82

INTRODUCTION                                                                                                                   82

TRADITIONAL KNOWLEDGE                                                                                            83

Background

The Nature of Traditional Knowledge and the Purpose of Protection

Managing the Debate on Traditional Knowledge

Making Use of the Existing IP System to Protect and Promote Traditional Knowledge

Sui Generis Protection of Traditional Knowledge

Misappropriation of Traditional Knowledge

ACCESS AND BENEFIT SHARING                                                                                  93

Background

Convention on Biological Diversity (CBD)

Disclosing the Geographical Origin of Genetic Resources in Patent Applications

GEOGRAPHICAL INDICATIONS                                                                                         98

Background

Geographical Indications and TRIPS

Multilateral Register of Geographical Indications

The Economic Impact of Geographical Indications

 

Chapter 5: COPYRIGHT, SOFTWARE AND THE INTERNET                                          105

INTRODUCTION                                                                                                                105

COPYRIGHT AS A STIMULUS TO CREATION                                                             106

Collecting Societies

WILL COPYRIGHT RULES ALLOW DEVELOPING COUNTRIES TO CLOSE

THE KNOWLEDGE GAP?                                                                                                109

COPYRIGHT-BASED INDUSTRIES AND COPYING OF PROTECTED WORKS  111

COPYRIGHT AND ACCESS                                                                                            113

Educational Materials

Libraries

COPYRIGHT AND COMPUTER SOFTWARE                                                               116

DELIVERING THE POTENTIAL OF THE INTERNET FOR DEVELOPMENT          117

Technological restrictions

 

 

Chapter 6: PATENT REFORM                                                                                      123

INTRODUCTION                                                                                                                 123

THE DESIGN OF PATENT SYSTEMS IN DEVELOPING COUNTRIES                     126

Introduction

Scope of Patentability

Patentability Standards

Exceptions to Patent Rights

Providing Safeguards in a Patent Policy

Encouraging Domestic Innovation

Conclusions

THE USE OF THE PATENT SYSTEM IN PUBLIC SECTOR RESEARCH                137

Introduction

Evidence from the United States

Evidence from Developing Countries

HOW THE PATENT SYSTEM MIGHT INHIBIT RESEARCH AND INNOVATION    140

The Issues in Developed Countries

The Relevance to Developing Countries

INTERNATIONAL PATENT HARMONISATION                                                              146

Background

WIPO Substantive Patent Law Treaty

 

Chapter 7: INSTITUTIONAL CAPACITY                                                                                153

INTRODUCTION                                                                                                                 153

IP POLICY MAKING AND LEGISLATION                                                                        153

Integrated Policy Making

IPR ADMINISTRATION AND INSTITUTIONS                                                                  156

Introduction

Human Resources

Information Technologies

EXAMINATION VERSUS REGISTRATION SYSTEMS                                                 159

Regional or International Co-operation

COSTS AND REVENUES                                                                                                161

The Cost of an IP system

Meeting the Costs

ENFORCEMENT                                                                                                                163

Enforcement in Developing Countries

Enforcement in Developed Countries

REGULATIING INTELLECTUAL PROPERTY RIGHTS                                     165

TECHNICAL ASSISTANCE AND CAPACITY BUILDING                                             167

Current Programs

Assessing the Impact of Technical Assistance

Financing Further Technical Assistance

Ensuring Effective Delivery of Technical Assistance

 

 

 

 

 

 

 

Chapter 8: THE INTERNATIONAL ARCHITECTURE                                                          172

INTRODUCTION                                                                                                                 172

INTERNATIONAL STANDARD SETTING: WIPO AND WTO                                       173

THE TRIPS AGREEMENT                                                                                                177

Assisting Developing Countries to Implement TRIPS

Timetable for Implementing TRIPS

IP IN BILATERAL AND REGIONAL AGREEMENTS                                                     180

DEVELOPING COUNTRY PARTICIPATION                                                                  182

Permanent Representation in Geneva

Expert Delegations

THE ROLE OF CIVIL SOCIETY                                                                                        184

DEEPENING UNDERSTANDING ABOUT IP AND DEVELOPMENT                        185

 

ACRONYMS                                                                                                                       189

 

GLOSSARY                                                                                                                        190

 

ACKNOWLEDGEMENTS                                                                                               194

 


OVERVIEW

 

 

INTRODUCTION

 

The Millennium Development Goals recognise the crucial importance of reducing poverty and hunger, improving health and education, and ensuring environmental sustainability.  The international community has set itself the target of reducing the proportion of people in poverty by half by 2015, along with associated specific targets for improving health and education and environmental sustainability.

 

It is estimated that in 1999 nearly 1.2 billion people lived on less than $1 a day, and nearly 2.8 billion people on less than $2 per day.[1]  About 65% of these are in South and East Asia, and a further 25% in sub-Saharan Africa.  There were an estimated 3 million deaths from HIV/AIDS in 2001, 2.3 million of them in sub-Saharan Africa.[2]  Tuberculosis (TB) accounts for nearly 1.7 million deaths worldwide.[3]   On present trends, there will be 10.2 million new cases in 2005.[4]  There are also over 1 million deaths annually from malaria.[5]  In 1999 there were still 120 million children not in primary school.  Sub-Saharan Africa has the lowest current enrolment rate at 60%.[6]

 

It is our task to consider whether and how intellectual property rights (IPRs) could play a role in helping the world meet these targets – in particular by reducing poverty, helping to combat disease, improving the health of mothers and children, enhancing access to education and contributing to sustainable development.  It is also our task to consider whether and how they present obstacles to meeting those targets and, if so, how those obstacles can be removed.

 

Some argue strongly that IPRs are necessary to stimulate economic growth which, in turn, contributes to poverty reduction.  By stimulating invention and new technologies, they will increase agricultural or industrial production, promote domestic and foreign investment, facilitate technology transfer and improve the availability of medicines necessary to combat disease.  They take the view that there is no reason why a system that works for developed countries could not do the same in developing countries.

 

Others argue equally vehemently the opposite.  IP rights do little to stimulate invention in developing countries, because the necessary human and technical capacity may be absent.  They are ineffective at stimulating research to benefit poor people because they will not be able to afford the products, even if developed.  They limit the option of technological learning through imitation.  They allow foreign firms to drive out domestic competition by obtaining patent protection and to service the market through imports, rather than domestic manufacture.  Moreover, they increase the costs of essential medicines and agricultural inputs, affecting poor people and farmers particularly badly.        

 

In assessing these opposing arguments, it is important to remember the technological disparity between developed and developing countries as a group.  Low and middle income developing countries account for about 21% of world GDP,[7] but for less than 10% of worldwide research and development (R&D) expenditure.[8] The OECD countries spend far more on R&D than India’s total national income.[9]   Almost without exception, developing countries are net importers of technology.         

 

It is essential to consider the diversity of developing countries in respect of their social and economic circumstances and technological capabilities.  Altogether more than 60% of the world’s poor live in countries that have significant scientific and technological capabilities, and the great majority of them live in China and India.  China and India, along with several other smaller developing countries, have world class capacity in a number of scientific and technological areas including, for instance, space, nuclear energy, computing, biotechnology, pharmaceuticals, software development and aviation.[10]  By contrast, 25% of poor people live in Sub-Saharan Africa (excluding South Africa), mainly in countries with relatively weak technical capacity.[11]  It is estimated that in 1994 China, India and Latin America together accounted for nearly 9% of worldwide research expenditure, but sub-Saharan Africa accounted for only 0.5% and developing countries other than India and China only about 4%.[12] 

 

Thus developing countries are far from homogeneous, a fact which is self-evident but often forgotten.  Not only do their scientific and technical capacities vary, but also their social and economic structures, and their inequalities of income and wealth.  The determinants of poverty, and therefore the appropriate policies to address it, will vary accordingly between countries.  The same applies to policies on IPRs.  Policies required in countries with a relatively advanced technological capability where most poor people happen to live, for instance India or China, may well differ from those in other countries with a weak capability, such as many countries in sub-Saharan Africa.  The impact of IP policies on poor people will also vary according to socio-economic circumstances.  What works in India, will not necessarily work in Brazil or Botswana.

 

 

BACKGROUND

 

Over the last twenty years or so there has been an unprecedented increase in the level, scope, territorial extent and role of IP right protection.[13]  Manifestations of this include:

 

·        The patenting of living things and materials found in nature, as opposed to man-made products and processes more readily recognisable to the layman as inventions

·        The modification of protection regimes to accommodate new technologies (particularly biotechnology and information technology), such as the EU Biotechnology Directive[14] or the Digital Millennium Copyright Act (DMCA) in the United States (US)

·        The extension of protection into new areas such as software and business methods, and the adoption in some countries of new sui generis regimes for semiconductors and databases

·        A new emphasis on the protection of new knowledge and technologies produced in the public sector

·        The focus on the relationship between IP protection and traditional knowledge,[15] folklore and genetic resources

·        The geographical extension of minimum standards for IP protection through the TRIPS agreement (see Box O.1), and of higher standards through bilateral and regional trade and investment agreements

·        The widening of exclusive rights, extension of the duration of protection, and strengthening of enforcement mechanisms.

 

 

Box O.1 The World Trade Organisation and the TRIPS Agreement

 

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)[16] emerged from the Uruguay Round of trade negotiations completed in 1994. The Final Act of these negotiations created the World Trade Organisation (WTO) and set out rules – the WTO Agreements including TRIPS – with which members of the WTO have to comply.  A dispute settlement system was also streamlined to resolve trade disputes between WTO Members. The WTO, as of January this year, has 144 Members, accounting for over 90% of world trade.  Over 30 further countries are negotiating membership.

 

TRIPS requires all WTO Members to provide minimum standards of protection for a wide range of IPRs including copyright, patents, trademarks, industrial designs, geographical indications, semiconductor topographies and undisclosed information.  In doing so, TRIPS incorporates provisions from many existing IP international agreements such as the Paris and Berne Conventions administered by the World Intellectual Property Organisation (WIPO).  TRIPS however also introduces a number of new obligations, particularly in relation to geographical indications, patents, trade secrets, and measures governing how IP rights should be enforced.

 

A special body, the Council for TRIPS (commonly known as the TRIPS Council), on which each WTO Member is represented, was established to administer the operation of the TRIPS.  The TRIPS Council is responsible for reviewing various aspects of TRIPS as mandated in the agreement itself and also as requested by the biennial WTO Ministerial Conference.

 

Among the issues raised by TRIPS that have provoked the most discussion are:

 

·         whether the objective set out in Article 7 that IPRs should contribute to the transfer of technology is achievable, particularly in respect of developing country members of the WTO.

·         the perceived tensions between Article 8 which allows countries to adopt measures necessary to protect public health, and to prevent abuses of IP rights, provided they are TRIPS consistent, and other requirements in the agreement.  These include the requirements to provide patent protection for pharmaceutical products, limitations on the conditions for issuing of compulsory licences (Article 31) and on the scope of provisions providing exceptions to patent rights (Article 30).

·         the requirement to protect test data against “unfair commercial use” in Article 39. 

·         the justification for providing additional protection for geographical indications for wines and spirits, (Article 23) and whether this additional protection should also be extended to cover other or all geographical indications.

·         the extent to which patents should be allowed on inventions relating to living forms, for example microorganisms (Article 27.3(b)), and the requirement to provide IP protection for plants.  In that context, the compatibility of TRIPS with agreements such as the Convention on Biological Diversity (CBD) has been raised.

·         the cost of meeting the requirements of TRIPS for many developing and least developed WTO Members in relation to the administration of IP rights and their effective enforcement.

 

TRIPS took effect on 1 January 1995. WTO Members considered as developed countries were given one year to comply whilst developing countries and transition economies were given until 1 January 2000 although for developing countries required to extend product patent protection to new areas such as pharmaceuticals, a further five years was provided before such protection had to be introduced. Least Developed Countries (LDCs)[17] are expected to enact TRIPS by 2006 although the Doha Ministerial Declaration on the TRIPS Agreement and Public Health allowed them a further 10 years in respect of pharmaceutical products. 

 

Where there are disputes over the interpretation of TRIPS and its implementation by national laws, members may bring cases to the WTO’s Disputes Settlement Body (DSB) to resolve. To date there have been 24 cases involving TRIPS, where the disputes procedures have been invoked.  Of these 23 were brought by developed country members, and one by Brazil.  Sixteen were disputes between developed countries, seven were cases brought by developed against developing countries, and one by Brazil against the US.  Of the 24, ten have been settled by mutual agreement, seven were decided by panels set up under the procedure, and seven are still pending.

 

The concerns about the operation of the intellectual property system and the extension of IPRs are not confined to their application to developing countries.  There are currently two prominent enquiries in the US, one by the National Academies of Science and one by the Department of Justice and the Federal Trade Commission, looking at this important question.[18]  These concerns centre on the rapid increase in patent applications in the US in recent years (a more than 50% increase in the last five years), and the perception that many more patents of “low quality” and broad scope are being issued.  A fear is commonly expressed that too many patents have been and may be granted in respect of developments of minor importance.  For instance, in the pharmaceutical industry this can have the effect of prolonging monopolies on valuable therapies.  Patents may also be granted in some jurisdictions over biological materials on the grounds that they have been isolated from nature, if a possible function or utility is identified.  The extent to which such practices affect competition by making it more difficult for rival inventors to sell competing products, or more expensive for consumers to buy them, is a matter of concern and growing debate.  Considerable debate also exists about their effect on research, particularly in software and biotechnology, where patents taken at an early stage in the research process may be an obstacle to downstream research and commercialisation.

 

In a seminal article, the biologist Garrett Hardin[19] coined the phrase “tragedy of the commons” to explain how common resources tended to be overutilised in the absence of rules for their use.  The proliferation of IPRs, particularly in areas such as biomedical research, has suggested the possibility of “a different tragedy, an “anticommons” in which people underuse scarce resources because too many owners can block each other…more intellectual property rights may lead paradoxically to fewer useful products for improving human health”.[20]  Companies may now incur considerable costs, in time and money, determining how to do research without infringing other companies’ patent rights, or defending their own patent rights against other companies.  This gives rise to a question as to whether the substantial costs involved in patent searching, analysis and litigation are a necessary price to pay for the incentives offered by the patent system, or whether ways can be found to reduce them.

 

The issues are not confined to patents.  In the US, the term of copyright has extended in the last century from 28 years (renewable for a further 28 years) under the 1909 Copyright Act to 70 years after the death of the author, or 95 years from publication (in line with European practice).  The question is whether this extension of protection can credibly be regarded as enhancing the incentives for future creation, or whether it is more about enhancing the value of existing creations.  In 1998, Congress passed the Digital Millennium Copyright Act (DMCA) which, inter alia, forbids the circumvention of technological protection (i.e. encryption).  In Europe, the Database Directive requires all Member States to provide sui generis protection for any collection of data arranged in a systematic way, whether the data itself is original or not.  So far the US has not followed this approach.  Increasingly there is concern that protection, under the influence of commercial pressures insufficiently circumscribed by considerations of public interest, is being extended more for the purpose of protecting the value of investments than to stimulate invention or creation.

 

We think that the concerns about the impact of IP in the US and other developed countries are important for developing countries as well.  But we consider that, if anything, the costs of getting the IP system “wrong” in a developing country are likely to be far higher than in developed countries.  Most developed countries have sophisticated systems of competition regulation to ensure that abuses of any monopoly rights cannot unduly affect the public interest.  In the US and the EU, for example, these regimes are particularly strong and well-established.  In most developing countries this is far from being case.  This makes such countries particularly vulnerable to inappropriate intellectual property systems.  We consider that developing countries can seek to learn from the experience of developed countries in devising their own intellectual property systems suitable to their particular legal system and economic situation. 

 

Apart from the impact of local intellectual property rules internally in a developing country, there are also indirect impacts of the developed country intellectual property system on developing countries.  In the digital age, restrictions on access to materials and data on the Internet affect everyone.  Scientists in developing countries, for instance, may be prevented from gaining access to protected data, or have insufficient resources to do so.  Research on important diseases or new crops affecting developing countries, but carried out in developed countries, may be hampered or promoted by the IP system.  The IP regime in developed countries may provide powerful incentives to do research of particular kinds which mainly benefit people in developed countries, diverting intellectual resources from work on problems of global significance.  Practice in developed countries may allow knowledge or genetic resources originating in developing countries to be patented without prior arrangements for sharing any benefits from commercialisation.  In some cases developing country exports to developed countries may be restricted as a result of such protection.   

 

Equally important for developing countries is the continuing trend towards the global harmonisation of IP protection.  The movement towards harmonisation is not new – it has been going on for over 100 years.  However the TRIPS agreement, that entered into force, subject to specified transitional periods, in 1995 (see Box O.1) has made minimum standards of IP protection mandatory for WTO members.  But TRIPS is only one element of international harmonisation.  There are continuing discussions in WIPO aimed at further harmonisation of the patent system, which may supersede TRIPS.  Moreover, bilateral or regional trade and investment agreements between developed and developing countries often include mutual commitments to implement IP regimes that go beyond TRIPS minimum standards.  Thus there is sustained pressure on developing countries to increase the levels of IP protection in their own regimes, based on standards in developed countries.     

 

We have also been struck by the inconclusive and contested nature of much of the economic research devoted to elucidating the impact of IPRs, even in relation to the developed world.  There is much that is uncertain, and given the nature of the subject, may remain so. The impact of IPRs is very often contingent on particular circumstances and context.  Many academic observers, for this reason, remain determinedly ambivalent as to whether the social benefits of IPRs exceed their costs.  Typical of these is the following example:

 

“It is almost impossible to conceive of any existing social institution {the patent system} so faulty in so many ways.  It survives only because there seems nothing better to do.”[21]

 

In the case of developing countries, several recent reports by international agencies have commented on the likely impact of the globalisation of IP protection on developing countries.[22]  All of these reports reflect to varying extents a concern that heavy costs may be incurred, but that the benefits for many countries are less easy to identify. 

 

 

OUR TASK

 

We take the setting up of our Commission to be evidence that the British government is sensitive to these concerns.  In that light our fundamental task is to consider whether the rules and institutions of IP protection as they have evolved to date can contribute to development and the reduction of poverty in developing countries. 

  

Our starting point is that some IP protection is likely to be appropriate at some stage for developing countries, as it has been historically for developed countries.  There is no doubt that it can make an important contribution to research and innovation in developed countries, particularly in industries such as pharmaceuticals and chemicals.  The system provides the incentive for individuals and companies to invent and develop new technologies that may benefit society.  But incentives work differently according to whether there is a capacity to respond to them.  And, by conferring exclusive rights, costs are imposed on consumers and other users of protected technologies.  In some cases, protection means that potential consumers or users, who are unable to pay the prices charged by IP owners, are deprived of access to the innovations the IP system is intended to make available. The balance of costs and benefits will vary according to how rights are applied and economic and social circumstances.  Standards of IP protection that may be suitable for developed countries may cause greater costs than benefits when applied in developing countries which must rely in large part on knowledge or products embodying knowledge generated elsewhere to satisfy basic needs and foster their development.

 

The Nature of Intellectual Property Rights

 

Some see IP rights principally as economic or commercial rights, and others as akin to political or human rights.  The TRIPS agreement treats them in the former sense, while recognising the need to strike a balance between the rights of inventors and creators to protection, and the rights of users of technology (Article 7 of TRIPS).  The Universal Declaration of Human Rights has a broader definition recognising “the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”, balanced by “the right…to share in scientific advancement and its benefits”.[23]  The crucial issue is to reconcile the public interest in accessing new knowledge and the products of new knowledge, with the public interest in stimulating invention and creation which produces the new knowledge and products on which material and cultural progress may depend. 

 

The difficulty is that the IP system seeks to achieve this reconciliation by conferring a private right, and private material benefits.  Thus the (human) right to the protection of “moral and material interests” of “authors” is inextricably bound up with the right to the private material benefits which result from such protection.  And the private benefit to the creator or inventor is derived at the expense of the consumer.  Particularly where the consumer is poor, this may conflict with basic human rights, for example, the right to life.  And the IP system, as manifested in TRIPS, does not allow – except in rather narrow ways - discrimination between goods essential to life or education, and other goods such as films or fast food.   

 

We therefore consider that an IP right is best viewed as one of the means by which nations and societies can help to promote the fulfilment of human economic and social rights.  In particular, there are no circumstances in which the most fundamental human rights should be subordinated to the requirements of IP protection.  IP rights are granted by states for limited times (at least in the case of patents and copyrights) whereas human rights are inalienable and universal.[24] 

 

For the most part IP rights are nowadays generally treated as economic and commercial rights, as is the case in TRIPS, and are more often held by companies rather than individual inventors.  But describing them as “rights” should not be allowed to conceal the very real dilemmas raised by their application in developing countries, where the extra costs they impose may be at the expense of the essential prerequisites of life for poor people.

 

Regardless of the term used for them, we prefer to regard IPRs as instruments of public policy which confer economic privileges on individuals or institutions solely for the purposes of contributing to the greater public good.  The privilege is therefore a means to an end, not an end in itself. 

 

Thus in terms of assessing the value of IP protection, it may be compared to taxation.  Hardly anybody claims that the more taxation there is, the better.  However, there is a tendency among some to treat more IP protection as self-evidently a good thing.  More taxation might be desirable if it delivers public services that society values more than the direct and indirect cost of taxation.  But less can also be beneficial, for instance if excessive taxation is harming economic growth.  Moreover, economists and politicians spend much time considering whether the structure of the tax system is optimal.  Are heavy social security taxes harming employment?  Are particular tax breaks serving their intended purpose, or merely subsidising their recipients to do what they are already doing?  Is the effect of the tax system on the distribution of income desirable from a social point of view? 

 

We think there are very analogous questions for intellectual property.  How much of it is a good thing?  How should it be structured?  How does the optimal structure vary with sectors and levels of development?  Moreover, even if we get the level and structure of protection right, to balance the incentive to invention and creation against the costs to society, we also have to worry about the distribution of gains. 

 

Equitable Sharing of Benefits and Costs

 

The immediate impact of intellectual property protection is to benefit financially those who have knowledge and inventive power, and to increase the costs of access to those without.  This is obviously relevant to the distribution of gains between developed and developing societies.    Even if there were economic gains to the world as a whole from extending protection, on which there is some debate, the distributional consequences for income may not accord with our sense of equity.  In the majority of developing countries, with weak scientific and technical infrastructures, the benefits in the form of the stimulus to domestic innovation will be muted, but they will still face the costs arising from the protection of (mainly foreign) technologies.   Thus the costs and the benefits of the system as a whole may not be fairly distributed.

 

If most developing countries do not have a strong technological base which could benefit from IP protection, they do have genetic resources and traditional knowledge, which have value both to them and to the world at large.  These are not necessarily IP resources in the sense that they are understood in developed countries, but they are certainly resources on the basis of which protected intellectual property can be, and has been, created.  This raises a number of difficult issues as to whether and how these resources should interact with, and be valued by, the “modern” IP system, the extent to which these resources and knowledge require their own protection (not just in the IP sense), and how commercial benefits derived from these resources should be equitably shared.         

 

The Internet also offers enormous opportunities for access to information required by developing countries, in particular scientists and researchers, whose access to printed media may be limited by lack of resources.  But there is a concern that forms of encryption (or “digital rights management”), designed to counter widespread copying, will make material less accessible than is now the case with printed media.  Such trends endanger the concept of “fair use”[25] (and similar doctrines) as it applies now to printed works, and at the extreme may provide the equivalent of perpetual copyright protection, by technological rather than legal means.

 

How Should Intellectual Property Policy be Made?

 

When there is so much uncertainty and controversy about the global impact of IPRs, we believe it is incumbent on policy makers to consider the available evidence, imperfect as it may be, before further extending property rights in scope or territorial extent. 

 

Too often the interests of the “producer” dominate in the evolution of IP policy, and that of the ultimate consumer is neither heard nor heeded.  So policy tends to be determined more by the interests of the commercial users of the system, than by an impartial conception of the greater public good.  In IPR discussions between developed and developing countries, a similar imbalance exists.  The trade ministries of developed nations are mainly influenced by producer interests who see the benefit to them of stronger IP protection in their export markets, while the consumer nations, mainly the developing countries, are less able to identify and represent their own interests against those of the developed nations.

 

Thus we recognise that the rules and practices of intellectual property, and how they evolve, are the product of political economy.  Developing countries - and in particular poor consumers of products which may be protected by IP rights - negotiate from a position of relative weakness. There is a fundamental asymmetry in relationships between developed and developing countries, based ultimately on their relative economic strength. 

 

The negotiations on TRIPS in the Uruguay Round are but one example.  Developing countries accepted TRIPS not because at the time the adoption of intellectual property protection was high on their list of priorities, but partly because they thought the overall package offered, including the reduction of trade protectionism in developed countries, would be beneficial.  Now many of them feel that the commitments made by developed countries to liberalise agriculture and textiles and reduce tariffs, have not been honoured, while they have to live with the burdens of the TRIPS agreement.   The agreement on a new “development” WTO Round at Doha last year recognises that this bargain, between developed and developing countries, needs to be made explicit and meaningful.   

 

The difficulty for developing countries in this context is that they are “second comers” in a world that has been shaped by the “first comers”.  And because of that, it is a very different world from that in which the “first comers” developed.  It is a cliché to say that we live in an age of globalisation, when the world economy is becoming more integrated.  It is an article of faith in the international community that integration on appropriate terms into the world economy is a necessary condition for development.  The question from our point of view is what are the appropriate terms for that integration in the field of IPRs.  Just as the now-developed countries moulded their IP regimes to suit their particular economic, social and technological circumstances, so developing countries should in principle now be able to do the same. 

 

We therefore conclude that far more attention needs to be accorded to the needs of the developing countries in the making of international IP policy.  Consistent with recent decisions of the international community at Doha and Monterrey, the development objectives need to be integrated into the making of IP rules and practice.  At Monterrey in March 2002, governments welcomed “the decisions of the World Trade Organization to place the needs and interests of developing countries at the heart of its work programme”.  They also acknowledged the concerns of developing countries, including:

 

“the lack of recognition of intellectual property rights for the protection of traditional knowledge and folklore; the transfer of knowledge and technology; the implementation and interpretation of the Agreement on Trade-Related Aspects of Intellectual Property Rights in a manner supportive of public health…”[26]

 

We believe this is a satisf