Michael Geist
April 2005

Appeared in the Toronto Star, April 25, 2005


Earlier this month, the World Intellectual Property Organization hosted groundbreaking discussions in Geneva. The U.N. agency, which for years has been associated with ever-increasing intellectual property protections for the developed world, held talks about initiating a new intellectual property development agenda that holds the potential to shift some of its focus to the needs of the developing world.

Although the precise issues to be addressed within the agenda are yet to be determined, a key element is the creation of an Access to Knowledge Treaty.  It could include provisions on access to medicines and globally funded research, open access to scholarly research, as well as exceptions to patent and copyright laws that serve the interests of the developing world.

The agenda, which was initially proposed last summer by Brazil and Argentina, has quickly gained momentum.  The most tangible result so far is the emergence of the Friends of Development coalition, comprised of 14 countries including Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela.  The coalition’s support for the development agenda at the Geneva meeting remained steadfast against U.S. opposition, as these countries made it clear that global intellectual property rules must do a better job of meeting the interests of both the developed and developing world.

While the attendees agreed to resume the development agenda dialogue in the coming months, the IP digital divide should not be underestimated. Countries from both the developed and developing world may be discussing intellectual property but they do so from perspectives that at times appear to be polar opposites.

The United States stands at one end of the spectrum with its vision of an intellectual property development program premised on “technical assistance” including the creation of stronger intellectual property administration and enforcement.  Ignoring the fact that most developed countries were slow to adopt strong IP protection during their developmental phase, it disputes the notion that intellectual property rules have become one-sided.  Instead it maintains that stronger IP laws will lead to developmental benefits for all countries, regardless of their economic status.

India eloquently presented the perspective from the developing world. It argued that the current emphasis of technical assistance on implementation and enforcement issues is misplaced, emphasizing that the focus should instead be placed on assessing the impact of intellectual property rules on the developing world.

Moreover, India noted the developing world’s need for access to knowledge, commenting that
“neither intellectual property protection, nor the harmonization of intellectual property laws leading to higher protection standards in all countries irrespective of their level of development, can be an end in itself. For developing countries to benefit from providing IP protection to rights holders based in developed countries, there has to be some obligation on the part of developed countries to transfer and disseminate technologies to developing countries.”    

Although the recent meeting marks an important step forward, the emphasis on access is likely to continue face significant opposition.  In the weeks leading up to the meeting, WIPO indicated that many non-profit groups representing developing world interests would be excluded on the grounds that they were not “WIPO accredited.” That position threatened to create a peculiar dynamic in which developed world delegates would greatly outnumber representatives from the developing world at a meeting designed to address developing world concerns (WIPO ultimately acquiesced on this issue).  Furthermore, while WIPO slowly considers development concerns, developed world initiatives, including a new Broadcasting Treaty and efforts to harmonize patent rules, move full steam ahead.

The intellectual property digital divide is evident beyond the halls of the United Nations. Last week I attended a conference on Internet and intellectual property law issues in Beijing, China. The U.S. was represented by an embassy official who emphasized both the need for stronger criminal penalties for intellectual property infringement and the creation of policing institutions to address these issues. The official vigorously exhibited his disagreement when a Hong Kong law professor questioned the U.S. position, outlining many of the same concerns as those expressed weeks earlier in Geneva. 

Moving beyond these hardened positions will require countries from both the developed and developing world to step up to bridge the divide.  In many respects, Canada is ideally suited to break from the developed world pack to assume a leadership position.  The federal government has set development assistance as a priority, committing significant new funding towards aid programs.  The developing world needs more than just dollars, however.  Canadian political support for the developing world’s perspective on intellectual property needs would carry long-term benefits that would extend well after the current round of aid funding is exhausted.

Moreover, Canada’s own intellectual property position is closer to the developing world that most might think.  Despite the fact that Canada is a signatory to virtually all major intellectual property treaties, it remains a net importer of copyrighted work and ranks toward the bottom of G8 nations for pharmaceutical research and development.  Our experience illustrates that intellectual property laws are important, but serve as only a small part of an overall policy designed to foster innovation, creativity, and economic growth.

As the developing world strives to identify effective growth policies, the WIPO development agenda has the potential to play an important role in altering the current intellectual property debate.  For it to succeed, countries such as Canada must also become “friends of development”.

Michael Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist@uottawa.ca and is on-line at www.michaelgeist.ca.

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