[Ecommerce] AToL Story re WIPO and Declaration

[Manon Ress]

Asia Times online
http://atimes.com/atimes/Global_Economy/FJ15Dj01.html

Global Economy

Putting the brakes on intellectual property rights
By Chee Yoke Heong

While advanced countries and their companies are pushing hard for the
strengthening of intellectual property rights (IPRs) around the globe,
there is now a strong movement among the governments of developing
countries, non-governmental organizations (NGOs) and academia to counter
this trend. At the recent general assembly of the World Intellectual
Property Organization (WIPO) in Geneva, a groundbreaking move was made
when Brazil and Argentina submitted a joint proposal calling for the
establishment of a "Development Agenda" for WIPO.

The proposal, which was co-sponsored by Bolivia, Cuba, the Dominican
Republic, Ecuador, Egypt, Iran, Kenya, Sierra Leone, South Africa,
Tanzania and Venezuela, was discussed extensively by the assembly and
adopted on October 4. These countries argued that the levels of IPR
protection should be commensurate with the level of their development
and that the present one-size-fits-all approach is detrimental to many
poorer countries. India, though not a co-sponsor, backed the proposal by
issuing a separate statement to that effect.

This is seen as an important milestone because WIPO, a United Nations
body since 1974, is often accused of caring more for the rights of
intellectual property owners than users, especially those in developing
countries. It also acts as a counterbalance to aggressive moves over the
years by advanced countries, led especially by the US, to force other
countries to implement strict IPR regulations.

Since most of the world's patents and copyrights are held by companies
in advanced countries, these entities have put enormous pressure on
their governments to force other countries to strengthen IPR protection.
This is done through various channels, either through the multilateral
process under the World Trade Organization (WTO), with its retaliatory
mechanism, or through bilateral means via free-trade agreements (FTAs).
Since Asia is known for its copyright and trademark violations, it is
not surprising that intellectual property protection is part and parcel
of the US's FTAs with both Singapore and Thailand.

The US also uses the threat of sanctions as a means to get countries to
extend IPR protection. Under Section 301 of the US Trade Act of 1974,
the US trade representative is required to submit a list of "countries
that have the most egregious acts, policies, or practices, or whose
acts, policies, or practices have the greatest adverse impact (actual or
potential) on relevant US products and are not engaged in good-faith
negotiations to address these problems". If no action is taken by the
government of the country listed on the "watch list", the US can impose
trade sanctions against the state concerned. Taiwan is one country that
figures prominently on the list.

The move by Brazil, Argentina in WIPO thus signals a concerted effort by
a group of developing countries to resist the worldwide push for IPR
protection which, they argued, is burdensome to them. They are against
the harmonization of intellectual property laws that leads to higher
protection standards in all countries, irrespective of their levels of
development, and instead called for the integration of the "development
dimension" into policymaking on intellectual property protection, saying
assessment should be done on a case-by-case basis.

India concurred, saying that higher levels of intellectual property
inherent in any harmonization exercise that takes no account of the
circumstances of individual countries are detrimental to the developing
world. "Intellectual property rights have to be viewed not as a
self-contained and distinct domain, but rather as an effective policy
instrument for wide-ranging socio-economic and technological
development," India said in support of the Brazilian and Argentine proposal.

Hundreds of scientists, academics, NGOs and individuals also gave their
support to the proposal for a development agenda. In a statement titled
the "Geneva Declaration on the Future of the World Intellectual Property
Organization", they urged WIPO to adopt a more balanced view of the
relative benefits of harmonization and diversity and seek to impose
global conformity only when it truly benefits all of humanity. "A
one-size-fits-all approach that embraces the highest levels of
intellectual property protection for everyone leads to ludicrous
outcomes for countries that are struggling to meet the most basic needs
of their citizens," the statement said.

Such statements point to a convergence of views by an increasing number
of people that IPRs, or private IPRs as is mostly the case, reward
individuals and impose high costs on the general public. One of the
arguments by proponents of IPR protection is that IPRs are essential for
growth and investment. But Brazil and Argentina, in their statement to
WIPO, said even in developing countries that may have a degree of
absorptive technological capacity, higher standards of intellectual
property protection have failed to foster the transfer of technology
through foreign direct investment and licensing.

According to Ha-Joon Chang and Ilene Grabel in a new book titled
Reclaiming Development, there is little evidence that the adoption of
IPRs, especially those embodied in the WTO's Trade-related Intellectual
Property Rights (TRIPs) agreement, encouraged technology transfers from
industrialized to developing countries. Also, there is little evidence
that the protection of IPRs plays any role in foreign direct investment.
Indeed, Switzerland's experience suggests the opposite: the absence of
patent laws made the country attractive to foreign investors.

The authors note that patents were not important to the development of
industrialized countries, which did not recognize or enforce patents
until after the process of industrialization was complete. It is
therefore unfair that developing countries today are being pressured to
adopt IPR protection. Since most developing countries are users rather
than creators of new technologies, it is not necessary to adopt strong
IPR protection, which is costly, among other things, in the form of
royalty payments to corporations in industrialized countries. According
to the UN Development Program, 97% of the world's patents are held by
developed countries.

IPRs also have increased the power of transnational corporations
vis-a-vis consumers. They encourage monopolistic behavior such as
monopoly pricing. This is problematic since developing countries often
have weak - and sometimes non-existent - anti-trust laws or weak
enforcement capabilities, particularly in relation to foreign
multinationals.

As the "Geneva Declaration" suggests, IPRs should not be an end in
themselves and should point to initiatives that encourage innovations
and developments that create public goods in the absence of IPR
protection, such as the Internet, the World Wide Web, Wikipedia, the
Creative Commons, GNU Linux and other free and open software projects,
as well as distance education and medical research tools. Technologies
like Google's now provide tens of millions of people with incredible
tools to find information.

There are alternatives to IPR regimes that also enhance public welfare.
There is renewed interest in compensatory liability and innovation
prizes as models for economic incentives for science and technology that
can facilitate follow-on innovation and avoid monopolistic abuses. These
alternatives are good counterpoints to the current IPR regimes. And as
the cost and limitations of IPRs become apparent, it is wise for
countries to adopt IPRs as a tool, but not the only tool, for development.


--
Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176