Professor Mark Schultz from Southern Illinois University School of Law reports on the third day (June 13th) of the Development Agenda meetings at the World Intellectual Property Organization (WIPO) being held this week in Geneva.
Please click here for the agenda of the meetings.
Results of Negotiations on Cluster B, Thus Far
The cluster of proposals dealing with norm-setting at WIPO has always promised to be the most controversial cluster of proposals to be discussed, as it seeks the greatest changes in WIPO’s mandate. On Wednesday, the parties announced agreement on part of this cluster, known as “Cluster B.” They will continue to negotiate this evening.
I will comment on a few of the proposals negotiated thus far. Brackets indicate points on which agreement has not yet been announced as of this writing.
Proposal 1, Flexibilities
1. “In its activities, including norm-setting, WIPO shall take into account the flexibilities in international IP agreements, especially those which are of interest to developing countries and least developed countries (LDC).”
As I have noted before, all international IP agreements contain flexibilities. Signatories need not have identical standards regarding issues like the obviousness standard under patent law or originality under copyright law. Indeed, it is beneficial to have some variation among world intellectual property systems, as it allows for experimentation and evolution.
This sort of flexibility is not what concerns IP skeptics. When IP skeptics refer to flexibilities, they mean exceptions like compulsory licensing. They unfortunately think that these are the sort of flexibilities that “are of interest to developing countries and LDCs.” Once again, they display a patronizing and paternalistic attitude, viewing the people of developing countries and least developed countries as victims who can only benefit from exceptions that allow them to take the intellectual property of others.
It is unfortunate that IP skeptics fail to see the enormous creativity and innovative capacity of the developing world. As the economist Julian Simon was fond of saying, the human mind is the ultimate resource. It is the one resource that is present in every country. Unfortunately, the benefits from this resource are not evenly distributed.
The institutional environment has failed the talented inventors, researchers, artists and musicians of the developing world. Intellectual property, along with other essential institutions like property rights generally, enforceable contracts, and the rule of law would greatly empower the talented citizens of developing countries and greatly benefit their home countries.
Proposal 2, Traditional Knowledge and Genetic Resources
2. “To urge the IGC to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments.”
The IGC process seeks to develop a treaty that would create a property right akin to intellectual property in a country or indigenous group’s folklore or a country’s genetic resource. This initiative is generally embraced by IP skeptics and often looked upon skeptically by IP proponents. Why this seeming reversal in customary positions with respect to property rights? One of the primary reasons is that these newly proposed rights are collective rights, most likely to be controlled by a government, and if not by a government, then by an officially designated group, like a tribal government.
There is a world of difference between private rights and collective rights. Private rights are both liberating and efficient, allowing individuals with the greatest interest, information, and know-how to develop and enjoy a creation. Collective rights are more susceptible to being used by governments as a means of taxation and to suppress messages and activities they do not like.
These rights would also be defined very broadly, unrestricted by requirements such as originality or novelty and of indefinite duration. IP skeptics contend that copyrights and patents are overbroad, blocking the use of common culture and access to knowledge. If these criticisms have any validity at all, they are likely to apply infinitely more to the rights likely to emerge from the IGC process. For example, under a law in Ghana passed a few years ago, the use of elements traditional to Ghanaian music was restricted. Modern Ghanaian High Life musicians suddenly found themselves facing the threat of fines or even imprisonment for using the rhythms and melodies that had been common to High Life music for years.
Something more consequential is afoot here, however, than controlling the behavior of and extracting rents from local musicians (however odious the prospect may be). At last month’s World Health Assembly, Indonesia asserted ownership over the samples of influenza viruses it provides for the creation of both the Avian flu vaccine as well as seasonal flu vaccines. (This news article provides useful background.) Indonesia asserted that the Convention on Biological Diversity (“CBD”) gives it such rights. This interpretation of the CBD is specious, as it recognizes only the sovereign right of nations to control their own genetic resources. It does not, however, create an internationally recognized right or mandate benefit sharing.
The IGC process in WIPO could indeed result in just such an internationally recognized right with benefit sharing. Indonesia apparently recognizes this fact, as it has convened an informal consultation with other WIPO member nations next week to discuss strategy regarding genetic resources before the next IGC meeting in July.
In other words, genetic resources are an important issue at the moment, they figure prominently in the IGC process, and WIPO just resolved to recommend speeding up that process.
Proposal 3, Access to Knowledge
3. “To discuss possible new initiative and strengthen existing mechanisms within WIPO to facilitate [access to knowledge] and technology for developing countries and LDCs and to foster creativity and innovation within WIPO’s mandate.”
Technology transfer is a perennial concern for developing nations. To develop, innovate, and compete with other countries they need to improve their technical know-how and knowledge base. There are many ways to accomplish this goal. For example, individuals study abroad and companies enter into joint ventures with foreign companies. WIPO already provides some assistance by holding seminars and sponsoring partnership programs with institutions in the developed world for member nation governments, small and medium business enterprises, and individuals.
The language in this proposal is not as innocuous as it seems. The sticking point is the “access to knowledge” language that Group B, including the United States, has refused. Mexico has offered a helpful suggestion: “access to technological information.” What is the difference between “access to knowledge” and “access to technological information”? Ten years ago, there would have been little difference of consequence.
Today, however, “access to knowledge” is a loaded term. In fact, it perhaps ought to be capitalized as Access to Knowledge or referred to by the now-familiar acronym “A2K.” As many readers may know, for the past few years, activists have proposed an Access to Knowledge treaty. As proposed thus far, this treaty would create extensive exceptions to both copyright and patent laws, creating positive rights to avoid intellectual property laws and restrictions on exercising intellectual property rights.
The Access to Knowledge proposal is clearly beyond WIPO’s mandate "to promote the protection of intellectual property throughout the world through cooperation among States." If the member nations of WIPO wish to re-negotiate the WIPO Convention, then they may do so, with all the attendant diplomatic formalities and challenges. But they cannot amend it surreptitiously by means of the Development Agenda process.
Many IP skeptics are reacting with outrage over the U.S.’s resistance to inclusion of the “access to knowledge” term. They demand to know why the U.S. and other developed nations are reacting with such hostility to three simple words. Why, they wonder, would anyone oppose access to knowledge? Such questions seem disingenuous. The activists, such as James Love of Knowledge Ecology International, know precisely why the use of the term “access to knowledge” is so consequential. The term embodies the activists’ own proposed treaty. If the words were of no consequence, then they would seem to have no reason to object to the substitution “access to technological information.”
These are among the most important of today’s developments. I will address others when we hear more tomorrow.
I am happy to receive questions or comments at email@example.com .