Global governance of Global governance of intellectual property – in intellectual property – in

whose interests?whose interests?

Dr Ian Brown, UCLDr Ian Brown, UCL

Geneva Declaration on the Geneva Declaration on the Future of WIPOFuture of WIPO

““Humanity faces a global crisis in the governance of Humanity faces a global crisis in the governance of knowledge, technology and culture. The crisis is knowledge, technology and culture. The crisis is manifest in many ways: manifest in many ways:

Without access to essential medicines, millions Without access to essential medicines, millions suffer and die; suffer and die;

Morally repugnant inequality of access to Morally repugnant inequality of access to education, knowledge and technology undermines education, knowledge and technology undermines development and social cohesion… development and social cohesion…

Concentrated ownership and control of Concentrated ownership and control of knowledge, technology, biological resources and knowledge, technology, biological resources and culture harm development, diversity and democratic culture harm development, diversity and democratic institutions; institutions;

Technological measures designed to enforce Technological measures designed to enforce intellectual property rights in digital environments intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors and consumers, persons, libraries, educators, authors and consumers, and undermine privacy and freedom…”and undermine privacy and freedom…”

World Intellectual Property World Intellectual Property OrganisationOrganisation Dates back to Paris Convention on Dates back to Paris Convention on

Industrial Property of 1883Industrial Property of 1883 Administers patent, trademark, design, Administers patent, trademark, design,

copyright, plant variety, integrated circuit, copyright, plant variety, integrated circuit, appellation, signals & Olympic symbol appellation, signals & Olympic symbol treatiestreaties

Part of UN system since 1974: Part of UN system since 1974: "to "to accelerate economic, social and cultural accelerate economic, social and cultural development." development."

181 members with equal votes181 members with equal votes ““Internet treaties” signed 1996 (Copyright Internet treaties” signed 1996 (Copyright

Treaty, Performances and Phonograms Treaty, Performances and Phonograms Treaty)Treaty)

WCT/WPPT problemsWCT/WPPT problems

““I think a lot of people didn't I think a lot of people didn't realize that it would have this realize that it would have this potential chilling effect on potential chilling effect on vulnerability research.” –Richard vulnerability research.” –Richard ClarkeClarke

Use to enforce accessory Use to enforce accessory controls (Lexmark, Aibo, controls (Lexmark, Aibo, Playstation)Playstation)

Rewriting the copyright bargainRewriting the copyright bargain

Potential copyright problemsPotential copyright problems

Electronic book burningElectronic book burning Reduced software diversity – Reduced software diversity –

security and competition riskssecurity and competition risks Personal and national Personal and national

sovereigntysovereignty PrivacyPrivacy

A trade-based approachA trade-based approach

““Our experience with WIPO was Our experience with WIPO was the last straw in our attempt to the last straw in our attempt to operate by persuasion” – Pfizer operate by persuasion” – Pfizer General CounselGeneral Counsel

US multilateral, bilateral and US multilateral, bilateral and unilateral negotiationunilateral negotiation

““Less than 50 individuals” Less than 50 individuals” responsible for a new US responsible for a new US approach – US trade negotiatorapproach – US trade negotiator

World Trade OrganisationWorld Trade Organisation

Created out of Uruguay GATT Created out of Uruguay GATT round 1986—1994round 1986—1994

TRIPS: Annex 1C of the TRIPS: Annex 1C of the Marrakesh Agreement Marrakesh Agreement establishing the WTOestablishing the WTO

Heavy pressure from US and Heavy pressure from US and later the EU, Japan and Canada later the EU, Japan and Canada (the “quad”)(the “quad”)

Agreement on Trade-Related Agreement on Trade-Related Aspects of Intellectual Property Aspects of Intellectual Property Rights (TRIPS)Rights (TRIPS)

Minimum patent term of 20 Minimum patent term of 20 years, copyright term 50 yearsyears, copyright term 50 years

Greater coverage of statesGreater coverage of states Severely limits compulsory Severely limits compulsory

licenceslicences Domestic enforcement Domestic enforcement

standardsstandards International enforcement International enforcement

through trade sanctionsthrough trade sanctions

Corporate patent objectivesCorporate patent objectives

““Much of the tedious detail of patent Much of the tedious detail of patent law and administration becomes law and administration becomes readily understandable when it is read readily understandable when it is read in the light of three private purposes:in the light of three private purposes:

1.1.To obtain monopoly control of any To obtain monopoly control of any knowledge in any field that is likely to knowledge in any field that is likely to prove important to commerce in some prove important to commerce in some way;way;

2.2.To enable the formation of cartels;To enable the formation of cartels;3.3.To reduce the costs to industry of To reduce the costs to industry of

obtaining patents.” –Peter Drahosobtaining patents.” –Peter Drahos

Access to essential medicinesAccess to essential medicines

““Effective medicines that dramatically Effective medicines that dramatically increase the life expectancy of people living increase the life expectancy of people living with AIDS became available in Europe and with AIDS became available in Europe and North America a decade ago. Today in the North America a decade ago. Today in the developing world 40 million people are developing world 40 million people are infected with HIV. 6 million people need infected with HIV. 6 million people need access to these same medicines NOW. access to these same medicines NOW. Only 400,000 do.Only 400,000 do.

WIPO seems to embrace a culture of IP WIPO seems to embrace a culture of IP without sufficient regard for the social and without sufficient regard for the social and health consequences… The IP system is a health consequences… The IP system is a social policy tool that should benefit society social policy tool that should benefit society as a whole. IP is a means to an end, not an as a whole. IP is a means to an end, not an end in itself. ” – Medicins San Frontieresend in itself. ” – Medicins San Frontieres

WTO “Development round”WTO “Development round”

Current round of trade Current round of trade negotiations began in Doha negotiations began in Doha during 2001, with a stated during 2001, with a stated “development focus”“development focus”

Agreement on public health Agreement on public health emergency in Africa allows emergency in Africa allows import of generic HIV, import of generic HIV, tuberculosis and malaria tuberculosis and malaria medication under compulsory medication under compulsory patent licencespatent licences

Declaration on the TRIPS Declaration on the TRIPS agreement and public healthagreement and public health ““the Agreement can and should be the Agreement can and should be

interpreted and implemented in a interpreted and implemented in a manner supportive of WTO manner supportive of WTO members' right to protect public members' right to protect public health and, in particular, to promote health and, in particular, to promote access to medicines for all.”access to medicines for all.”

““Each member has the right to grant Each member has the right to grant compulsory licences and the compulsory licences and the freedom to determine the grounds freedom to determine the grounds upon which such licences are upon which such licences are granted.”granted.”

Integrating intellectual property Integrating intellectual property rights and development policyrights and development policy

Final report of UK Commission on Intellectual Final report of UK Commission on Intellectual Property Rights (2002):Property Rights (2002): “ “The intellectual property rights system, as The intellectual property rights system, as a whole is less advantageous for developing a whole is less advantageous for developing than for developed countries in many areas of than for developed countries in many areas of importance to development, such as health, importance to development, such as health, agriculture, education and information agriculture, education and information technologies. technologies. The system increases the costs of access The system increases the costs of access to many products and technologies that to many products and technologies that developing countries thus making poverty developing countries thus making poverty reduction more difficult.reduction more difficult. The extension of IP rights globally will The extension of IP rights globally will diminish the degree of competition worldwide diminish the degree of competition worldwide for many products and services leading to for many products and services leading to increased prices.”increased prices.”

Proposal for the Establishment of Proposal for the Establishment of a Development Agenda for WIPO a Development Agenda for WIPO

The Governments of Brazil and Argentina: “Despite the important scientific and technological

advances and promises of the 20th and early 21st centuries, in many areas a significant “knowledge gap” as well as a “digital divide” continue to separate the wealthy nations from the poor.”

“Development concerns should be fully incorporated into all WIPO activities. WIPO’s role, therefore, is not to be limited to the promotion of intellectual property protection.”

““WIPO should consider undertaking activities with a view to exploring the promise held by open collaborative projects to develop public goods, as exemplified by the Human Genome Project and Open Source Software.”

Approved by WIPO General Assembly 4/10/04Approved by WIPO General Assembly 4/10/04

ConclusionsConclusions

IP law swung heavily towards IP law swung heavily towards the interests of right holders the interests of right holders during the 1980s and 1990sduring the 1980s and 1990s

Doha declaration and WIPO Doha declaration and WIPO Development Agenda are Development Agenda are moving IP back towards balancemoving IP back towards balance

You need to encourage these You need to encourage these processes in your own processes in your own countries!countries!