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Jan. 17, 2005. 01:00 AM
 
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Fairness calls for fairer rules

MICHAEL GEIST

As developing countries seek access to new technologies, they frequently find that global intellectual property law rules represent a significant barrier to development.

Years of international agreements have failed to balance the interests of the developed and developing worlds and have led to annual outflows of billions of dollars from the developing world to the developed world. Oxfam estimates the developing world transfers $20 billion (U.S.) per year as a result of the incorporation of intellectual property protections into global trade rules in the mid-1990s.

The one-sided nature of global intellectual property law is best illustrated by the legal protections granted to pharmaceutical products. Developed countries that are now home to pharmaceutical giants persistently resisted providing patents for pharmaceutical products until their industries were well developed — France introduced pharmaceutical patents in 1960, Germany in 1968, Japan in 1976, Switzerland in 1977, and Italy and Sweden in 1978.

Despite the developed world example, the World Trade Organization's intellectual property provisions require all members, including those from the developing world, to provide pharmaceutical product patent protection. Developing countries, many of which face severe health crises, are unable to develop national pharmaceutical industries and today find critical pharmaceutical products are either unavailable or unaffordable.

In fact, even when developing countries take legal steps to provide more affordable pharmaceutical products to their citizenry, they often face trade pressures from the United States and the European Union. The best-known example of this occurred in 1997, when South Africa faced a barrage of U.S. and European criticism after it enacted legislation that permitted parallel imports of certain pharmaceutical products to address a medical crisis.

The situation is much the same in the application of copyright law to the developing world. The 1996 World Intellectual Property Organization's (WIPO) Internet treaties, which Canada has sensibly not yet ratified, count the U.S., Japan, and some European countries as ratifiers. A significant group of the treaty countries, however, come from the developing world including Botswana, Burkina Faso, El Salvador, Gabon, Mali, and Senegal. Those countries, whose decision to ratify enabled the treaties to achieve official status (treaties require a minimum number of ratifications before taking effect), did so despite no demonstrated need for heightened digital copyright protection as well as the prospect that the treaty provisions might prove detrimental to national education initiatives.

In other ways the developing world has begun to fight back. Dozens of developing countries have established open source software promotion policies. While open source is not cost-less it is seen as an opportunity to decrease dependence on expensive proprietary software.

Many countries have also accelerated support for traditional knowledge protection as they seek to share in profits generated through commercial exploitation of knowledge passed from generation to generation among indigenous peoples.

Last fall WIPO, which has been viewed by many as insensitive to the concerns of the developing world, approved a new development agenda. Initially proposed by Brazil and Argentina, it won support from developing countries from across the globe.

The agenda promises to focus for the first time on developing country concerns including the pursuit of collaborative information-sharing initiatives such as those that use the Human Genome Project and the development of the World Wide Web as models.

The agenda also raises the possibility of a treaty on access to knowledge and technology, which 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.

Canada's commitment to global development has long been a source of pride. The Canadian International Development Agency commits hundreds of millions of dollars annually toward assistance in developing countries, former Prime Minister Jean Chrétien made African access to pharmaceuticals a personal priority, and millions of Canadians have pledged to assist with tsunami relief efforts.

While these initiatives are admirable, Canada can do more. WIPO's development agenda provides the first chance in years to fashion a global intellectual property policy that helps, rather than hinders, the developing world. It deserves Canada's active support.


Michael Geist is Canada

Research Chair in Internet and

E-commerce law at the University of Ottawa. He is on-line at http://www.michaelgeist.ca. The

opinions expressed are personal and do not necessarily reflect those of the University of Ottawa.

Additional articles by Michael Geist


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