Document(s) 17 of 17

Why did the World Intellectual Property Organization (WIPO) start work on a Development Agenda? There are many answers to this question. A cynic might see it as paying lip service to the growing number of discontents of the globalization of “Western” intellectual property rules, in particular via the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs), a process that would then allow progress on negotiations toward higher intellectual property protection, whether on geographical indications, audiovisual performers, broadcasters’ rights, or non-original databases. Yet the empirical evidence shows that, since the conclusion of TRIPs, in April 1994—apart from the two WIPO “Internet treaties” on copyright concluded in December 1996 (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) and mostly administrative and procedural agreements such as the Trademark Law Treaty (October 1994) and the Singapore Treaty on the Law of Trademarks (March 2006)—it has been difficult, if not impossible, to raise the multilateral level of intellectual property protection. In the past twelve years, the only new norms adopted in either WIPO or the World Trade Organization (WTO) were reinterpreted exceptions on patent compulsory licensing for certain pharmaceutical products, culminating with the adoption of Article 31 bis of the TRIPs Agreement (not in force as of January 2009). This cynical view, while it may have held some sway, does not (or does no longer) reflect the real purpose of the Development Agenda.

To find its purpose, one must look at the initial proposal in August 2004 by Argentina, joined by Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela. That proposal insisted on (1) the welfare costs of increasing intellectual property protection, (2) the difficulty for many developing and least-developed nations to benefit from higher protection levels, and (3) the different situation of many of those countries, especially when their economy, their industry, and culture were compared to those of the TRIPs demanders (the EC, Japan and the United States, with support mostly from Australia and Switzerland). Some of the issues identified in Argentina’s text were well argued, others more intuitive. Yet, unmistakably, the agenda was an effort to illuminate the costs and challenges of implementing higher intellectual property protection as well as the distinctions among nations that must be made in that process. Cookie-cutter norm implants and paper compliance with TRIPs would not do.

As I have argued elsewhere,¹ we are now in the third phase of the TRIPs Agreement. The first was an addition phase (more IP is better), where compliance with TRIPs took the form of rapid legislative deployment. Model laws were adopted in many countries. A threefold belief informed the first phase: first, it was essential to protect the property of intellectual property holders in both rich and poorer countries; second, by generating additional profits, it would in turn lead to more research and development; third, it was necessary to jump-start economic growth in those countries (intellectual property seen as a necessary ingredient of development and foreign direct investment).

In a fairly typical cart-before-the-horse scenario, the first true detailed studies on the impact of intellectual property specific to developing countries emerged after the conclusion of the TRIPs Agreement.² Combined with the escalating public health issues posed by the HIV and malaria pandemics, a second phase of TRIPs started around 2000. It was characterized by highly critical analyses of the TRIPs negotiation process and its results. Indeed, the GATT Uruguay Round, which produced both the WTO and TRIPs, was the first example on such a huge scale of sectoral reciprocity: TRIPs (and the much weaker Agreement on Trade in Services–GATS) in exchange for agriculture and textiles.

Critics emphasized coercion to explain the bargain. They pointed to threats during the Uruguay Round to isolate developing countries from the global trading system or to impose punitive unilateral sanctions if they did not accede to the demands of the West. Other observers, such as economist Jagdish Bhagwati, opined that intellectual property was not proper subject matter for the WTO.³ However, the majority of critics underscored the absence of empirical data to justify the addition-based narratives. Many of them tried to demonstrate the inadequacy of Western intellectual property norms to protect certain forms of traditional medicinal knowledge or traditional cultural expressions (sometimes referred to jointly as “traditional knowledge”).⁴ Several books, articles, and reports were published⁵ to explain how TRIPs could and should be “fought” both within the WTO (for example by coalescing or insisting on technology transfers) and without (for example by fostering the emergence of alternative instruments in other forums, such as the Convention on Biological Diversity),6 either as countervailing international law norms or hermeneutic tools for TRIPs exegetes. The second phase, which thus focused on subtraction (less IP is better), confronted head-on a fundamental two-prong query, namely: (1) What is the causal relationship between intellectual property protection and foreign direct investment? and (2) Does increased FDI necessarily lead to spur innovation in the recipient country? The queries are important because they underpin much of the pro-intellectual property discourse.

TRIPs has now entered a third phase, one that is informed by calibration narratives, against a backdrop of shifting geocommercial realities, including exponential outsourcing by Western enterprises to China, India, and other developing countries and the growing clout and tactical capabilities of developing countries in trade and other multilateral discussions. The building blocks of the calibration process that is under way are many: (1) the recognition that developing countries are very different, from Chile to China, from Bolivia to Burkina Faso, or from Egypt to India, and consequently may need different implementations of TRIPs; (2) the recognition that below certain developmental thresholds, the introduction of high levels of intellectual property protection will not generate positive impacts (as was evidenced by the extensions of transitional periods available for least-developed WTO members until 2013 and 2016, which periods are likely to be renewed); (3) the growing belief that intellectual property protection is necessary to develop innovation and draw foreign direct investment (including technology transfers) but in itself is insufficient to achieve developmental objectives; (4) consequently, the recognition that any complete TRIPs implementation must form part of a broader strategic initiative; and, finally, (5) the recognition that the sudden introduction of high levels of protection and enforcement may induce significant negative welfare impacts, which must also be managed.

The WIPO Development Agenda emerged at the beginning and as the poster child for the third phase. It focuses on most if not all of the critiques identified above. This includes work on how TRIPs implementation strategies must differentiate among countries based on several factors, including their industrial capacity and level of development, and work on a fuller understanding of how innovation can emerge in developing countries. The results of the work that WIPO might accomplish on the first issue should allow for fine-grained approaches to domestic TRIPs implementations. Work on the second fuller understanding is fundamental because TRIPs fails to recognize adequately (many of its drafters made assumptions that should have been expressly documented) that innovation does not follow automatically from the adoption and enforcement of higher intellectual property protection, for many reasons. Intellectual property laws are not a magic wand. Essentially, intellectual property is but one of several ingredients of a successful national innovation policy. TRIPs assumed that each WTO Member knew and had the ability to develop and implement such a strategy. If domestic innovation and creativity cannot be developed in ways that harness TRIPs rules, many developing countries will see TRIPs as a net negative, a form of rent extraction benefiting multinationals. This problem is compounded by the perception that this additional rent is not used in sufficient quantity to produce goods of interest to the developing world (e.g., pharmaceuticals designed to treat tropical diseases). The Development Agenda could be the ultimate gap-filler.

If it is to be successful, the Development Agenda will need input not just from national delegates at WIPO or from the Secretariat, but also from leading academics and others (civil society). This book is precisely such a contribution. Giving voice to scholars from every continent, it sheds light on each of the aspects discussed above: What should the purpose and aim of the Development Agenda be (and its “localization”)? How can and should the impact of intellectual property in the developing world be measured, and how may countries be classified for the purpose of that analysis? How can intellectual property be retooled for development, and what is the appropriate interface between public and private sector research? How should developing countries adapt TRIPs and other rules, and which exceptions should they consider (for example in the educational context)? What may be the impact of ongoing multilateral and bilateral negotiations, and what should the role of civil society be? Finally, who else might play a role in this increasingly central picture?

This book adds an important stone to the edifice of calibrated multilateral intellectual property, and I am grateful, as many others no doubt will be, to Professor de Beer and the authors of the various chapters for their timely contribution.

¹ See Daniel Gervais, “TRIPS and Development,” in D. Gervais, ed., Intellectual Property, Trade and Development: Strategies to Optimize Economic Development in a TRIPS-Plus Era (Oxford: Oxford University Press, 2007).

² See id.

³ Jagdish Bhagwati, In Defense of Globalization 182-85 (Oxford 2004).

⁴ J. Michael Finger and Philip Schuler, Poor People’s Knowledge: Promoting Intellectual Property in Developing Countries (World Bank and Oxford, 2004).

⁵ See the list of TRIPs-related books and articles at www.tripsagreement.net.

⁶ Convention on Biological Diversity, 1760 UNTS 143, 31 ILM 818 (1992).

Document(s) 17 of 17