[Ecommerce] Michael Geist in Toronto Star: Fairness calls for fairer rules

[Manon Ress]

Michael Geist column in today's Toronto Star
INTELLECTUAL PROPERTY DEVELOPMENT AGENDA DESERVES SUPPORT

His weekly Toronto Star Law Bytes column focuses on the WIPO Development
Agenda. It notes that years of international agreements have failed to
balance the interests of the developed and developing worlds and have
predictably led to annual outflows of billions of dollars from the
developing world to the developed world.  The introduction of a
development agenda represents the best opportunity to reshape global
intellectual property law in a manner that benefits both the developed
and developing world. <http://geistdevelopingip.notlong.com>

Fairness calls for fairer rules
Michael Geist
Toronto Star

As developing countries seek access to new technologies, they frequently
find that global intellectual property law rules represent a significant
barrier to development.

Years of international agreements have failed to balance the interests
of the developed and developing worlds and have led to annual outflows
of billions of dollars from the developing world to the developed world.
Oxfam estimates the developing world transfers $20 billion (U.S.) per
year as a result of the incorporation of intellectual property
protections into global trade rules in the mid-1990s.

The one-sided nature of global intellectual property law is best
illustrated by the legal protections granted to pharmaceutical products.
Developed countries that are now home to pharmaceutical giants
persistently resisted providing patents for pharmaceutical products
until their industries were well developed - France introduced
pharmaceutical patents in 1960, Germany in 1968, Japan in 1976,
Switzerland in 1977, and Italy and Sweden in 1978.

Despite the developed world example, the World Trade Organization's
intellectual property provisions require all members, including those
from the developing world, to provide pharmaceutical product patent
protection. Developing countries, many of which face severe health
crises, are unable to develop national pharmaceutical industries and
today find critical pharmaceutical products are either unavailable or
unaffordable.

In fact, even when developing countries take legal steps to provide more
affordable pharmaceutical products to their citizenry, they often face
trade pressures from the United States and the European Union. The
best-known example of this occurred in 1997, when South Africa faced a
barrage of U.S. and European criticism after it enacted legislation that
permitted parallel imports of certain pharmaceutical products to address
a medical crisis.

  The situation is much the same in the application of copyright law to
the developing world. The 1996 World Intellectual Property
Organization's (WIPO) Internet treaties, which Canada has sensibly not
yet ratified, count the U.S., Japan, and some European countries as
ratifiers. A significant group of the treaty countries, however, come
from the developing world including Botswana, Burkina Faso, El Salvador,
Gabon, Mali, and Senegal. Those countries, whose decision to ratify
enabled the treaties to achieve official status (treaties require a
minimum number of ratifications before taking effect), did so despite no
demonstrated need for heightened digital copyright protection as well as
the prospect that the treaty provisions might prove detrimental to
national education initiatives.

In other ways the developing world has begun to fight back. Dozens of
developing countries have established open source software promotion
policies. While open source is not cost-less it is seen as an
opportunity to decrease dependence on expensive proprietary software.

Many countries have also accelerated support for traditional knowledge
protection as they seek to share in profits generated through commercial
exploitation of knowledge passed from generation to generation among
indigenous peoples.

Last fall WIPO, which has been viewed by many as insensitive to the
concerns of the developing world, approved a new development agenda.
Initially proposed by Brazil and Argentina, it won support from
developing countries from across the globe.

The agenda promises to focus for the first time on developing country
concerns including the pursuit of collaborative information-sharing
initiatives such as those that use the Human Genome Project and the
development of the World Wide Web as models.

The agenda also raises the possibility of a treaty on access to
knowledge and technology, which could include provisions on access to
medicines and globally funded research, open access to scholarly
research, as well as exceptions to patent and copyright laws that serve
the interests of the developing world.

Canada's commitment to global development has long been a source of
pride. The Canadian International Development Agency commits hundreds of
millions of dollars annually toward assistance in developing countries,
former Prime Minister Jean Chr=E9tien made African access to
pharmaceuticals a personal priority, and millions of Canadians have
pledged to assist with tsunami relief efforts.
While these initiatives are admirable, Canada can do more. WIPO's
development agenda provides the first chance in years to fashion a
global intellectual property policy that helps, rather than hinders, the
developing world. It deserves Canada's active support.

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Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist@pobox.com              http://www.michaelgeist.ca
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Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC
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