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

 

September 2002

 

November 2002 (2nd Edition)

 

The full text of the report and the executive summary can be downloaded from the IPR 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