IPRs may need “re-scrutiny”, says UK minister

The British Minister for Development Cooperation, who had commissioned the intellectual property report, has asserted that the study challenges everyone to set aside vested interests and reexamine the intellectual property system in order to serve the poor.

by Cecilia Oh

GENEVA: The intellectual property rights (IPRs) system may need to be “re-scrutinized” to take account of its effect on poverty, and, since there is a bias in the system, it is important to set aside vested interests and see how to open up knowledge to everyone in the world, the British Minister for Development Cooperation Clare Short declared here while launching the report of the independent Commission on Intellectual Property Rights (CIPR) on 16 September.

Short had commissioned the report and was speaking at its launching ceremony, where the WTO Director-General Supachai Panitchpakdi and the World Intellectual Property Organization (WIPO) Director-General Kamil Idris were also present and spoke, as also the Chairman of the CIPR John Barton, Professor of Law at Stanford University, who gave a brief presentation on the report.

Responding to a question from the audience, a delegate from Zambia, Short said the UK Department for International Development (DFID), which she heads, would not be able to sign on the government to each and every recommendation in the report. “The report now belongs to everyone, and we will all have the responsibility of making sure there is follow-up on the recommendations made.”

Short said that the British government had set up a committee to review the implications of the CIPR report. “Our voice will come back in the negotiating fora,” she said, adding that her department would assist developing countries to build their capacity in their own interests.

Short said that she was enormously impressed by the report, which she described as fair-minded, with a very rich agenda. “It gives a fresh look at IP, traditional knowledge and other issues from the perspective of the interests of poor people,” she said. “If we want to manage a globalizing world, we have to re-examine all the international institutions which have originated from the OECD countries - to see if they are able to serve the interests of the poor.”

The reason for commissioning the report, she said, was to ask the same questions that the DFID has been asking: “Are the international institutions doing their job? Is the IMF, World Bank and the UN, institutions dominated by the North, doing their job?”

It may be that the system has a lot of unintentional bias. Now this report challenges everyone to set aside their old ideas; “we have to set aside vested interests. Now we have no excuse, we need now to re-examine the IP system, open up access to knowledge and technology to all.”

Health, Short said, is very important. Flexibility was found in the TRIPS Agreement at Doha, resulting in the Doha Declaration on the TRIPS Agreement and Public Health.

“Now we have to address the export issue, in the TRIPS Council. We need to face up to the fact that market forces left by themselves cannot work - we need new deals to ensure public health and access to medicines. This is do-able in health, and if this is so, it can also be do-able in agricultural research, in traditional knowledge, and so on.

“There needs to be goodwill; with goodwill we can have an agenda for linking trade and development, to shift the mindset of the world, to scrutinize the IP system to serve the interests of the poor. We need to re-work the system.”

The WTO head Supachai Panitchpakdi, speaking on the occasion, said the IPR issue has been shown to be divisive - between those seeking more protection and those seeking access to knowledge and technology so that they are able to produce or even access the products themselves.

When the TRIPS Agreement was constructed, the negotiators had the best of intentions and tried to put in a balanced set of provisions that can promote research but also have flexibility for users of the products. However, as with all multilateral agreements, TRIPS needed to be put into practice first, then to be looked at, interpreted, then re-interpreted, reviewed or even subject to study (as had been done here) - especially from the angle of developing countries.

TRIPS may look one-sided - therefore it needs to be examined, “so that we are able to produce as many sides to TRIPS as possible, shed light on the different angles, especially from the developing countries’ perspective.”

The WTO head said the CIPR report can make great contributions in two aspects: firstly, on how TRIPS can be applied, particularly in terms of flexibility, etc. so that developing countries, in light of their development needs, can make optimum use. The issue of TRIPS and medicines is an example. The Doha Declaration on public health is a reflection of the need to look at TRIPS from the perspective of developing countries - which may not have been particularly skilful in adopting the TRIPS provisions to serve their needs.

Secondly, in terms of the ongoing debate in areas of IP protection, how should  IP protection be perceived in light of the development dimension? Issues like traditional knowledge, biotechnology, etc. are issues which need to be addressed in the future. How TRIPS should be implemented in these cases, will be the key question in the context of IP protection in the development process.

These are the wider issues which may require improvements in the framework.

The report’s recommendations, Supachai said, can be reconciled with the work mandated under the Doha agenda - there is ongoing work on the possible application and interpretation of TRIPS.

There are areas undergoing active discussion - Paragraph 6 of the Declaration is an example. “Let me assure you that health is a key issue for the [WTO] Secretariat - we believe that this is the key to unlocking the negotiations in trade and development.”

“The atmosphere in the TRIPS Council is guardedly optimistic - substantial proposals have been made, the recommendations need to be sorted out, but this is not an easy issue. But we are optimistic that a solution can be reached.

“Other issues we are working on in the WTO include: the working group on technology transfer is addressing the technology transfer issue; this is an area we’d like to see properly addressed.”

“Competition policy is another area that may help in complementing IP regimes. The working group on competition will provide the forum in which these issues can be addressed.”

The WIPO DG Kamil Idris said there was a need “to strike a balance between IP holders, stakeholders and society.” That was why WIPO accorded top priority to “demystification” of IP, towards which national-, regional- and international-level efforts had to be intensified to avoid misunderstanding. Because the needs were different, sometimes the messages and signals conveyed to the different countries may sometimes be contradictory. “It is important for us to take the message about IP to the various stakeholders - to the grassroots, to schoolchildren, etc.”

Idris said that WIPO would start consultations on the report with the countries that are WIPO members, and the market.

In summarizing the main findings of the report earlier, Prof. John Barton, Chairman of the CIPR, said IPRs cannot benefit most developing countries and in fact would incur costs for many.

“The main findings included: IPRs raise consumer prices, the benefits of IPRs are absent for most developing countries, and many of today’s developed countries achieved their takeoff in circumstances of much weaker IP standards. Today’s IP standards make it much harder for developing countries to upgrade their technology status.”

What did these findings mean for Geneva, where the WTO and WIPO are located, asked Barton.

These institutions, he said, should put development needs at the centre of the IP agenda. Industrial countries should make a prior assessment of their proposals in relation to how these proposals will affect the health and development needs of developing countries.

Barton also stressed the problems that are arising from two new areas of negotiations in the IP field. Firstly, there is a move to harmonize the patent system in WIPO. “Developing countries may be pressurized to accept the outcome, and in the end find that harmonization may remove the present flexibilities in TRIPS,” Barton warned. (For more on this issue, see “WIPO moves towards ‘world’ patent system”, TWE #285.)

Secondly, he said, initiatives regarding digital protection could lead to stricter protection, which could then diminish the benefits of the Internet and digital technology to developing countries.

Barton said the main recommendation of the report was that “we have to take a nuanced and sensible approach to IP. Stronger IP rights are only sometimes better rights. There are distributional implications to IP that must be considered.”

Case for radical TRIPS reform

Welcoming the CIPR report, the British charity organization ActionAid said in a statement that the report in fact questioned the whole framework of the WTO’s TRIPS Agreement. ActionAid called upon the UK government and the TRIPS Council, which was meeting in Geneva in the week of 16 September, to take actions on the recommendations of the Commission.

“This report has taken a big step in acknowledging that intellectual property rights legislation has a detrimental effect on poor countries,” said Ruchi Tripathi, ActionAid’s Food Policy Analyst. “The UK government now has the opportunity to take a lead and call on the international community to radically reform the TRIPS Agreement and adopt a system that protects the rights of poor farmers and supports development worldwide.”

In line with many of the policy changes that ActionAid has been demanding in the area of agriculture and food, the CIPR exposes the dangers of the global IPRs system and points out that countries with very different levels of development require very different approaches to IPRs.

Tripathi notes that on agricultural patents, the report says that the fundamental human rights of farmers to make a living must not be subordinated to the requirements of IP protection.

“It draws attention to the fact that patents allow big business to monopolize biotechnology, thereby prioritizing profit over the needs of many farmers.”

The Commission has no legislative powers to bring its recommendations to effect. “What happens next will depend on the political will of the rich countries. We call on the EC, US, Canada and Japan, in consultation with developing-country communities and governments, to give urgent consideration to the structures and mechanisms that would be needed to ensure a fundamental change in IPR systems and to act with speed in promoting radical changes in the TRIPS Agreement,” Tripathi said.

“The TRIPS Council,” she added, “now has the independent advice it needs to substantially reform its agreement. If this report is cast aside, it will be a disaster for millions of poor farmers.” (SUNS5193)                                           

Cecilia Oh is a representative and Legal Advisor of the Third World Network based in Geneva.

From Third World Economics No. 289 (16-30 September 2002)