Document(s) 15 of 17

THE WORLD INTELLECTUAL PROPERTY ORGANIZATION DEVELOPMENT AGENDA

This book is a very valuable addition to the lamentably small independent literature on the World Intellectual Property Organization. Throughout its pages the contributors have reflected on both the promise and the difficulty of enacting the Development Agenda at WIPO. The organization has become a battleground for competing visions of the role of intellectual property in development, made more confusing by the shared language that is often deployed on different sides of the debates (but with different implied meanings). Here I will not revisit my own work on WIPO (see May 2007) but rather will reflect on the future possibilities for WIPO and the Development Agenda.

The debates over the Development Agenda have not led to a significant level of what critics have often referred to as forum shopping or a further expansion of forum proliferation. This possibly indicates that there are only so many times a forum can be changed before the diplomacy of such shifts becomes difficult in the short term. But perhaps more importantly the secretariat of WIPO itself has made a significant effort to positively respond to the Development Agenda while seeking to keep the less enthusiastic rich and developed country group as part of the process rather than merely siding with one side or the other. For some commentators this has been seen as yet more evidence that WIPO is unable to effectively engage with those members whose views on intellectual property are more critical than celebratory. However, this balanced approach might also be seen as a pragmatic move to ensure that WIPO remains at the centre of the global governance of intellectual property. Indeed, this is a clear move toward one of the key demands of the Development Agenda—that WIPO act as a membership organization. When its members cannot agree, an organization has a clear responsibility to attempt to mediate such differences. WIPO has recently begun to do this rather than merely adopt the IPR-maximalist position favoured by a particular subgroup of its membership. Certainly this has been cautious and incomplete, but the trajectory is at least potentially in the direction set out by the agenda.

The contributors to this book, and the wider critical engagement with the agenda that they represent, are right to conclude that while there have been and continue to be problems with the manner in which WIPO operates vis-à-vis development, these issues have now been clearly recognized (if as yet not resolved) by WIPO itself. In this acceptance of reformism as the most fruitful way forward in dealing with the shortcomings of global governance, WIPO’s critics themselves have entered the mainstream. In a similar way that the history of critical engagement with the World Trade Organization has moved from calls for abolition at the end of the previous century to the now almost universal desire to see a continuing program of reform succeed, so too the future of WIPO seems likely to hold the promise of a more complex understanding of the role of intellectual property in development. Now backed less by faith (as in the past) but responding to the diversity of evidence on the role of IPRs in development, WIPO’s public pronouncements (and specifically those by its new director-general) are beginning to recognize that the full protection of IPRs is appropriate only once countries have reached a certain stage of development. This realization has driven the Development Agenda and has now entered the policy mainstream from a position on the margins during the negotiation of the WTO’s Trade Related aspects of Intellectual Property Rights (TRIPs) agreement. That said, there is much in the agenda that is yet to be fully incorporated into the wider (re)engineering of WIPO: for instance as yet little has been accomplished on establishing a more robust diplomacy of the global public domain, nor has the central issue of flexibility moved out of the Development Agenda document and into the practices of WIPO itself. For optimists, this may indicate merely that the process has achieved some early and easy gains before moving onto more difficult issues, for the pessimists the relatively uncontentious aspects of the agenda may in the end be the only parts enacted: only time will tell which assessment is correct. In the meantime, however, this welcome but still developing shift in international IPR-related diplomacy now confronts a set of difficult circumstances.

ENTERING THE GLOBAL SLOWDOWN

At the time of writing (December 2008), the global economy has entered what will undoubtedly be a difficult period of slowdown, recession, and on some forecasts a full global depression. Although there are many issues that the downturn raises in the global political economy, as regards the implementation and further development of the agenda, there are three questions worth bearing in mind as the next couple of years unfold.

1. Are (some) rich countries about to find themselves in the same position as (some) poorer countries?

In the debates about IPRs during and after the Uruguay Round, the typical summary of the position that divided protagonists was between those countries whose corporations have benefited from their (protected) ownership of various intellectual properties and those countries whose users (commercial and private) experienced IPRs as extra costs on access to information, or the use of various aspects of knowledge for development and other purposes. However, as the balance of technical leadership starts to move, perhaps accelerated by the impact of the recession on research and innovation in the most-developed countries (the US, Europe, and Japan), it is not clear that those states that previously argued for robust protection of IPRs will necessarily find themselves so advantaged by the current settlement. If the TRIPs agreement and the work of WIPO has largely in the past privileged the interests and benefits of the technological leaders in the global economy, what happens when this leadership starts to shift?

If the global downturn does consolidate and accelerate the shift in technological leadership in the global system, we are likely to see national negotiating teams from the most developed countries at WIPO being less all-encompassing in their support for the global intellectual property system. If major corporations start to find that they are disadvantaged by the system (as already some are finding with IPRs significantly raising their input prices; see Jaffe and Lerner 2004), this will be communicated to those diplomats who are working on these issues. This may not immediately transform the IPR system, but it is likely to make the more flexible approach that is favoured by the supporters of the Development Agenda become more not less amenable to widespread diplomatic support. This may prompt renewed interest in rehabilitating compulsory licensing as well as a less supportive stance on the harmonized expansion of patent scope. Conversely, for previous skeptical countries’ governments, who are now starting to see themselves with economic sectors that are able to profit from the exploitation of IPRs (perhaps most notably some content industries, but also in software services), the boot (as they say) may be on the other foot. Having seen other countries do well from the IPR system, some governments may regard keeping the system robust as a way of taking their turn to support industrial/sectoral profits. Thus, it is not self-evident that the supporters of the Development Agenda will necessarily continue to support all of its elements, and indeed this mosaic of (partial) support is already complicating discussions at WIPO.

2. Will companies more jealously guard their intellectual properties or assets?

There is already a clear move in copyright for those corporations holding rights over content to more vigorously seek to enforce the protection of these rights. This is partly a response to the tightening economic environment in late 2008, but it is also due to the significant work conducted by both WIPO and national intellectual property offices in identifying IPRs as a significant site of potential financial losses, an issue especially relevant in a downturn. Moreover, as firms start to make people redundant, the possibility of ex-employees taking sensitive or right-protected information and knowledge to the employment market has reinforced the practices of some major IPR-controlling corporations, causing them to make more strident efforts to halt employee-related transfer of intellectual property between firms (via contract and IPR-related law).

Furthermore, as moves to ratchet up coverage of geographical indicators suggests, not all developing countries see the preferred outcome of the agenda as being a wholesale relaxation of protection for IPRs outside the rich and more developed countries. Indeed, as WIPO’s previous capacity-building activities have spent some time inculcating developing country entrepreneurs into the IPR-maximal-ist position, we should not be surprised that as avenues of earning potential start to look unreliable, developing countries are starting to adopt measures that support enhanced control over valuable assets. Indeed, in a downturn, companies are likely to seek ways of sweating existing (intellectual) assets and of generating profit from resources they already hold.

3. Can the “open” alternative survive in less prosperous times?

One of the trajectories that alternatives to IPRs have involved is the move to more “open” platforms and modes of knowledge dissemination. The Development Agenda does not make much of “openness” in explicit terms, but the call for flexibility of treatment of knowledge and information for development clearly implies an interest in open alternatives to the commoditization of knowledge. Here the latest generation of Internet-empowered mobile phones is clearly moving away from proprietary software (with three competing open platforms competing against Apple and Microsoft), and one argument may be that in the realm of high and advanced technology intellectual property is becoming less important.

However, looking at the manner in which open communities are often tacitly supported by the proprietary sector (through time allowances for open-related work, for instance), it may be that the relatively relaxed attitude that some high-tech companies have adopted about the characterizing of innovations as open (despite being developed on company time), which allows these companies to reap wider benefits from quasi-membership of the open community, will not survive the tightening of purse strings as the slowdown begins to bite. Moreover, when employers fail and “open” workers no longer have financial cushions provided by traditional (proprietary) employers, we may see the supply of, and interest in, open development begin to shrink.

THE GLOBAL GOVERNANCE OF IPRS IN THE NEXT DECADE

In one sense, the Development Agenda may be the last best chance for WIPO to maintain its relevance to the global governance of IPRs. As I have briefly discussed above, the global political economic context is undoubtedly already changing and as such the past positions and practices of WIPO may well play out differently in the new millennium. WIPO in the past has been too clearly associated with a particular (as some would have it, faith-based) appreciation of the role of IPRs in development. Now that this has been comprehensively and widely challenged, the agenda is a mechanism by which WIPO can once again (repeating its post-TRIPs diplomatic success) seek to remain at the centre of the global governance of intellectual property. However, if in the thinner times that we are about to experience the interest in IPRs as a business asset is transformed across the membership of WIPO, then WIPO’s previous positions on IPRs may begin to seem less problematic to at least some of the supporters of the agenda. This suggests that the diplomatic agenda to which WIPO will work is not a simple as it was in the past: the agenda has opened up a number of issues in the organization, but the global downturn has already changed the shape of the likely responses.

REFERENCES

Jaffe, Adam B., and J. Lerner. 2004. Innovation and Its Discontents. Princeton: Princeton University Press.

May, Christopher. 2007. The World Intellectual Property Organisation: Resurgence and the Development Agenda. Abingdon: Routledge.

Document(s) 15 of 17