[Ip-health] John Barton proposal for global treaty on the Global Scientific and Technological Commons

[James Love]

Science and Technology Diplomacy Initiative and the
ICTSD-UNCTAD Project on IPRs and Sustainable Development
Policy Dialogue on a Proposal for an International
Science and Technology Treaty
Room XXV, Palais des Nations, Geneva
Friday, 11 April 2003, 10:00a.m. - 1p.m.

Provisional Programme

1. Welcome by Mr. Rubens Ricupero, Secretary-General of UNCTAD

2. =93International Science and Technology Treaty=94, by John Barton,
Professor of Law at Stanford University and Chair of the Commission on
Intellectual Property Rights, United Kingdom

3. Discussants:
Keith E. Maskus, Professor and Chair of Economics at the University of
Colorado, Boulder, USA; Ricardo Mel=E9ndez-Ortiz, Executive Director of
the International Centre for
Trade and Sustainable Development (ICTSD); and Pedro Roffe, Director of
the ICTSD-UNCTAD Project on Intellectual Property Rights and Sustainable
Development.

4. Questions and answers

Preserving the Global Scientific and Technological Commons
By John H. Barton

Science and technology require a commons of data, ideas, and insight.
Everyone benefits from the openness of that commons. A scientist or
engineer is more effective if he or she has access to the work of
predecessors =96 and this contribution will be greater if others have
access to his or her work. The commons is global, not just national.
Exchange of data and scientific communication across borders is not only
part of the mythology of science; it also contributes to the rate of
progress of science and technology. And the modern research-based
corporation is itself global, combining research and personnel from all
over the world.

Restrictions on the Global Scientific/Technological Commons

This global commons faces a number of restrictions. One group arises
from regulations designed to protect short-term national
competitiveness. In the United States, for example, a license from
federally-funded technology must preferentially be given to national
firms.1 Special research exemptions in U.S. antitrust law favor
production by U.S. firms.2 The U.S. research tax credit is available
only for research done within the United States, even by a United States
company.3 Similarly, the European Union has recently created a European
Research Area, designed to support European competitiveness.4

A second and increasingly strong group of restrictions arises from the
global trend to expand the scope of intellectual property protections
from products to reach more basic ideas, procedures, and materials
fundamental to the progress of science and technology. Many have been
concerned about the =93anti-commons=94 arising from patents on basic
research tools and methodologies, especially in areas like genomics.5  A
U.S. court has just narrowed the research exemption from patent
infringement.6 Data bases are subject to protection in Europe.7
Meteorological data, once freely shared, are now sold by some European
Union governments.8 And the costs of satellite photography to scientists
are likely to increase.9

Finally, our current scientific and technological institutions exclude
those potential scientists and engineers in the developing world who do
not have an opportunity for education. And those who do obtain education
in the developing world often lack the resources to attend international
conferences or buy scientific journals. Only some can participate
through access to the Internet. The world as a whole loses.

Possibility of Expanding the Commons through Reciprocity

The world has previously faced analogous barriers, in the form of
protectionist restrictions to free trade, restrictions that appeared to
serve national self interest and in fact deprived all of the benefits of
free trade. Through the GATT (the General Agreement on Tariffs and
Trade), which was negotiated in 1947, and converted into the WTO (the
World Trade Organization) in 1995, diplomats found a way to lower
protectionist restrictions by negotiating on the basis of reciprocity:
=93I=92ll lower my tariffs and help your exports if you=92ll lower yours an=
d
help my exports.=94 The resulting GATT/WTO system has a variety of codes
and rules requiring the dismantling of particular trade barriers. These
are regularly revised and improved in negotiating rounds such as current
Doha Round or the Uruguay Round that led to the 1995 creation of the
WTO. The process has been so successful that the last half of the 20th
century has seen an unprecedented growth in international trade.

The scientific/technological commons could be expanded the same way:
=93I=92ll let your firms and scientists benefit from my research subsidies
and basic data if you=92ll let my firms and scientists benefit from your
subsidies and data.=94 As with free trade, the net benefits are positive,
for a more inclusive and open global scientific/technological commons
will be more dynamic. To do this requires a treaty that defines rules
freeing scientific/technological exchange and establishes procedures for
negotiating regular improvements and expansions of those rules.

There are precedents. There is already a dense network of bilateral
scientific exchange agreements, some as full treaties and some as
agreements between counterpart agencies.10 These typically provide a
framework for designated cooperative public sector programs and sort out
such issues as intellectual property rights. But they do
not generally apply to other than designated programs.11 Many might work
much better if globalized, especially because current digital network
technology facilitates multilateral collaboration. Congress may be
supportive, for it has declared that =93The mutually beneficial
applications of technology in bilateral and multilateral agreements and
activities involving the United States and foreign countries or
international organizations should be recognized and supported as an
important element of United States foreign policy.=9412 And Philippe
Busquin, the European Commissioner for Research, has stated that =93The
European Research Area must be opened up to the rest of the world. This
openness should enable EU countries to benefit from international
cooperation in science and technology paving the way for closer
political and economic relations with third countries.=9413


2

Possible provisions of a treaty

The key legal provision of such a treaty would require that, in as many
ways as possible, foreign scientists and firms be treated the same way
as national ones with respect to access to a nation=92s scientific and
technological support and capability. Specific provisions might include
reciprocal commitments to ensure that the benefits of publicly funded
research are made available to all and not just to nationals. Similar
reciprocal commitments would prohibit favoritism to national firms in
areas like participation in research consortia and access to
research-oriented tax benefits. And there might be commitments against
visa restrictions that limit the ability of students to study at
universities in another nation, or restrict the ability of scientists or
engineers to participate in conferences or gain experience at firms in
another nation.

Other issues that might be covered include access to scientific
databases and ensuring that intellectual property law not restrict
access to basic scientific advances. These would have to be balanced by
safeguard provisions, to ensure, for example, that intellectual property
associated with international scientific and technological collaboration
is managed in a fair way, and to respond appropriately to national
security and technology proliferation concerns, as with respect to
military uses of biotechnology. The latter issue is especially important
after September 11, 2001. The United States has proposed, for example,
programs to create new kinds of security classification for biological
data14 and recent legislation restricts certain foreign students from
studying particular areas of biotechnology.15 Such restrictions may be
in the national and global interest =96 but only if they are reasonably
applied and make a proper balance between anti-terrorism concerns and
scientific/technological commons concerns. A treaty could usefully spell
out this balance.

There would also need to be provisions for regular meetings, for a small
secretariat to evaluate the actual degree of scientific and
technological cooperation and its mutual benefit, and for continuing
negotiations. Such negotiations could provide a focal point for
scientific and technical constituencies interested in further opening of
the global scientific/technological commons

Helping the Developing Nations

Strengthening openness on a global basis will itself greatly help
developing countries, not just by giving them increased access to
information and ideas, but also by accelerating the rate of development
of science and technology. But a treaty might go much further to help
the scientific and technological communities in these nations.

Developed nations might commit themselves to assist developing nations
in achieving specific educational and scientific/technological goals.
This form of international assistance has proven particularly effective,
even if rare =96 broad commitments to technology transfer such as those in
TRIPS16 have not generally contributed much technology to developing
nations. It is strong and relatively specific treaty  commitments that
are likely to be especially useful. The economic benefit of such
assistance is often long-term while the political support may be short term=
.

Of special importance should be commitments to support programs for
providing global public scientific and technological goods for the
developing world, such as the Consultative Group on International
Agricultural Research and the new public-private partnerships for
research on HIV, TB, and malaria. Dealing with these needs is
absolutely crucial to human survival and to the stability of
international society =96 and the programs are greatly underfunded.17
Financial commitments would be excellent; they could well be
supplemented by commitments to help deal with possible intellectual
property difficulties, such as obtaining access to patented platform
technologies.

Negotiating a Treaty

Although it is possible to begin with an emphasis on technology flow,
this may raise concerns about threats to trade secrets and industrial
competitiveness. Therefore, it is probably wise to begin with science,
since that is easier, but to do so in a way that permits expansion into
more technological areas.

The reciprocal benefits of broadening the commons may make a globally
oriented treatment more feasible than one focused primarily on
developing nations. The globally-oriented treaty would still
significantly benefit developing nations, and could easily include
provisions giving these nations preferential benefits. Most important,
Johit would help these nations gain the stronger human resources they
need to develop =96 which is an important step toward achieving
technological capability. For a treaty with a global scientific focus,
there are two reasonable negotiating fora. One is UNESCO, the United
Nations Educational, Scientific and Cultural Organization. his might be
a good place to begin, but is certainly more scientific than technological.

The better forum for the more technological issues, and possibly for all
issues, is the WTO. This organization already has responsibility for
significant agreements governing intellectual property and international
trade in services (where issues of visa rights are involved), and may
well move on to deal with international competition laws, which will
certainly be important for technology-based industry. The WTO already
has a negotiating process that allows for dynamic strengthening of
agreements, based on reciprocity and trade-offs of concessions in one
sector for counter-concessions in another sector. With some adaptation
to create the necessary secretariat, the model developed to help the
world gain the benefit of free trade could also help the world gain the
benefit of a stronger, more open global scientific/technological commons.

1 35 U.S.C. =A7 209(b) (manufacture of products derived from licenses
under Bayh-Dole Act).

2 15 U.S.C. =A7 4306 (manufacture of products under the National
Cooperative Research Act of 1984 and
the National Cooperative Production Amendments of 1993).

3 26 U.S.C. =A7 41(d)(4)(F).

4 Decision No. 1513/2002/EC of the European Parliament and of the
Council of 27 June 2002.

5 Michael A. Heller & Rebecca S. Eisenberg, Can Patents Deter
Innovation? The Anticommons in Biomedical Research, Science 280: 698
(1998). UK Commission on Intellectual Property Rights, Integrating
Intellectual Property Rights and Development Policy 126-30 (2002).

6 Madey v. Duke University, 307 F.3d 1351 (CAFC 2002).
7 S.M. Maurer, P.B. Hugenholtz, and H.J. Onsrud, Europe=92s Database
Experiment, Science 294:789-90 (26 Oct. 2001).

8 See, e.g., The Meteorological Office Agency, Framework Document, April
1996, available at
http://www.metoffice.com/corporate/legal/framework.pdf, (U.K.).

9 D. Malakoff, Will the U.S. Bring Down the Curtain on Landsat?, Science
288: 2309 (30 June 2000).

10 See Science, Technology and American Diplomacy 1995, Sixteenth Annual
Report Submitted to the Congress by the President Pursuant to Section
503(b) of Title V of Public Law 95-426. Joint Committee Print, Committee
on Science and Committee on International Relations, April 1996. (The
series has since been discontinued.)

11 See, e.g. Art. 2, Agreement for Scientific and Technological
Cooperation between the European
Community and the Government of the United States of America, signed
Dec. 5, 1997.

12 22 U.S.C. =A7 2656b (2002). The language derives from the 1988
authorization act for the Uruguay Round trade negotiations, P.L. 95-426
=A7 502.

13 International Scientific Cooperation Policy, available at
europa.eu.int/comm/research/iscp/welcome_en.html.

14 Ronald M. Atlas, National Security and the Biological Research
Community, Science 298: 753 (25
Oct. 2002).

15 USA Patriot Act of 2001, =A7 817, codified at 18 U.S.C. =A7 175(b).

16 See, e.g. Article 66.2, covering incentives for private sector
technology transfer to developing
nations.

17 Commission on Macroeconomics and Health, Macroeconomics and Health,
Investing in Health for Economic Development, (Dec. 2001).

--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040


--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040