Patently problematic
Sep 12th 2002
From The Economist print edition
http://economist.com/science/displayStory.cfm?story_id=1325219
An important new study shows the promise, and pitfalls, of
intellectual-property rights for the poor
INTELLECTUAL-PROPERTY rights (IPR),
which embrace patents, copyright, trademarks and trade secrets, were once
considered an esoteric, and slightly dull, bit of commercial law.
No longer. Today, IPR
law is the focus of intense interest, and it is not just lawyers who are
paying attention. The original purpose of patents was to encourage
innovation, and thus growth, by creating an incentive for inventors to
disclose the details of their inventions in exchange for a limited monopoly
on exploitation. Some argue that the modern system of IPR law is having the
opposite effect—delaying the diffusion of new technology.
John Barton, a law professor at Stanford University,
wants to see both rich and poor countries start thinking of IPR
more as a development tool, and for them to reconsider the notion that
strongly protecting the rights of inventors is automatically good for all.
For the past year, Dr Barton has chaired the Commission on Intellectual
Property Rights, a body of lawyers, academics, a bio-ethicist and an
industry executive convened by Britain's Department for International
Development to look at how IPR can work to the benefit of the world's poor
countries.
The commission's report, published on September 12th,
sets out detailed recommendations for how developing countries should craft
IPR to suit their conditions. Its
central message is both clear and controversial: poor places should avoid
committing themselves to rich-world systems of IPR protection unless such
systems are beneficial to their needs. Nor should rich countries, which
professed so much interest in “sustainable development” at the recent summit
in Johannesburg, push for anything stronger.
There was a time when countries could go their own way
on intellectual-property rights, and introduce legal protection for creators
whenever they thought it appropriate. For most of the 19th century, America
provided no copyright protection for foreign authors, arguing that it needed
the freedom to copy in order to educate the new nation. Similarly, parts of
Europe built their industrial bases by copying the inventions of others, a
model which was also followed after the second world war by both South Korea
and Taiwan.
Today, however, developing countries do not have the
luxury to take their time over IPR. As
part of a trade deal hammered out eight years ago, countries joining the
World Trade Organisation (WTO) also sign up to TRIPS (trade-related aspects
of intellectual-property rights), an international agreement that sets out
minimum standards for the legal protection of intellectual property. The
world's poorest countries were given until 2006 to comply in full with the
requirements of the treaty.
Contrary to popular perception, TRIPS
does not create a universal patent system. Rather, it lays down a list of
ground rules describing the protection that a country's system must provide.
These extend IPR to include computer programs, integrated circuits, plant
varieties and pharmaceuticals, all of which were unprotected in most
developing countries until the agreement. Patent rights are valid no matter
whether the products are imported or locally produced, and protection and
enforcement must be extended equally to all patent holders, foreign and
domestic.
Although many poor countries feel that TRIPS
gives them a raw deal—all cost and scant benefits—few want to see the
agreement dismembered or removed from the WTO, according to Rashid Kaukab,
at the South Centre, a think-tank based in Geneva. That is largely for fear
of what might take its place. Instead, a few developing countries, such as
India and Brazil, are starting to flex their muscles when it comes to the
battle between western standards of IPR protection and matters of public
interest, such as health and farming. As the commission points out, the
wording of TRIPS gives poor countries considerable latitude to look out for
themselves when introducing new systems of IPR protection. It also suggests
a few ways that they can make the most of this flexibility in a number of
important areas:
• Drugs Much of the recent debate over the
impact of IPR on the poor has centred on
the issue of access to expensive medicines. On paper, many of the world's
least-developed countries have laws which provide patent protection for
pharmaceuticals. In practice, few enforce them. Spurred on by a victory in
April 2001 against drug companies fighting patent reform in South Africa,
developing countries issued a declaration at the WTO meeting in Doha last
year. This asserted the primacy of public health over IPR. They resolved
that the world's least-developed countries should be given at least until
2016 to introduce patent protection for pharmaceuticals.
On September 17th, the WTO
council responsible for TRIPS will consider a far trickier proposition in
the declaration: how to make compulsory licensing (the manufacture and
marketing of a patented drug without the patent-holder's consent) work for
the poorest. TRIPS already permits compulsory licensing under certain
conditions, including national emergencies. This is fine for countries such
as Brazil, which have domestic drug industries to copy the medicines. Brazil
has, indeed, used the threat of compulsory licensing to wring price
discounts out of drug companies, a ploy which the commission, somewhat
controversially, supports.
The problem is what to do with countries which have no
drug makers. For the moment, they can import generic copies from the likes
of India, but come 2006, when those exporters are supposed to have fallen in
with the TRIPS line, who will supply the
drugs?
• Education and research Alan Story, a
specialist in IPR at the University of
Kent, in Britain, reckons that copyright, particularly as it pertains to
education and research, will be the next big battleground. Those countries
that have signed up to TRIPS have also accepted international copyright
rules. Although these allow some unauthorised copying for “fair use” or
personal consumption for education or research, the commission worries that
these exceptions are too limited, and that copyright may hamper access to
textbooks, journals and other educational material in poor countries, by
requiring the consent of, and likely payment to, the publisher prior to
copying.
The commission is even more worried about the
Internet, which has great potential for broadening access to education in
poor countries, but in which encryption technologies can override the
principle of fair use. Some publications, such as the British Medical
Journal, allow free online access for people in poor countries. The
commission would like to see more of this. In the meantime, it recommends
that developing countries allow users to sneak round technical barriers such
as encryption, to gain access for fair use. Not surprisingly, software
makers are unenthusiastic.
• Traditional knowledge The most glaring
conflict between rich and poor over intellectual property comes from the
misappropriation of “traditional knowledge”—such as ancient herbal remedies
that find their way into high-priced western pharmaceuticals without the
consent of, or compensation to, the people who have used them for
generations. Often, patent examiners are simply unaware that the plant
variety which an enterprising businessman is trying to patent has been used
for centuries by a tribal community half a world away. The commission
recommends that countries create databases to catalogue such traditional
knowledge (India is already doing so), and urges that consulting such
databases should be made a mandatory part of patent examinations the world
over.
More than this, however, Kamal Puri, a lawyer at the
University of Queensland, Australia, argues that new systems of IPR
protection are needed for traditional knowledge. That is because its
communal ownership, uncertain date of creation and unwritten form does not
fit the requirements of western systems of IPR. On September 17th, a model
law, drafted by Dr Puri and co-sponsored by UNESCO, will be unveiled at a
meeting of Pacific island states in New Caledonia. The law gives traditional
users jurisdiction over native knowledge, and requires that those who wish
to commercialise it must seek the users' consent. All transactions must be
registered with a tribal authority, which will deal with subsequent
disputes.
Even when armed with these weapons, poor countries
will have a hard time deploying them. Drafting IPR
legislation and setting up a patent office that has modern
information-technology systems and trained examiners does not come cheap or
easy. Neither does establishing judicial, customs and competition
authorities, and police services to enforce IPR rules. The World Bank
reckons that it costs at least $1.5m to create a working system, plus
recurrent costs.
Moreover, inventors in poor countries find it tough to
use patent systems in the rich world. Merely securing a patent from
America's patent office costs at least $4,000. Defending it in court can
cost millions. The commission identifies several ways in which rich
countries could open their domestic IPR
systems, including discounted fees and subsidised technical assistance. It
also suggests they should help poor countries to set up their own systems
without saddling them with rich-world standards until they are ready to
benefit from them. Inventing a way to do that might be worth a patent in its
own right. Those who heed the commission's report, however, might well
resist the claim. |