In the late afternoon at the first day of the Global Congress Combating Counterfeiting and Piracy, a Boardroom Dialogue Session was held on “IP enforcement and sustainable development – perspectives and challenges.” Johannes Christian Wichard, Deputy Director General of WIPO’s Global Issues Sector moderated the panel. He opened by saying that intellectual property needs to protect the interests of both IP users and owners. It needs to be enforced in a balanced way. He read the text of TRIPS Art.7:
Wichard said that everyone agrees on the broad principle that IP needs to be flexible to work in the real world. Everyone agrees that it must achieve a balance between private incentives for innovation on one hand and access on the other. However, when we get into the specifics, we find disagreements.
Gift H. Sibanda, Director General of the African Regional Intellectual Property Organization (ARIPO) said the Global Congress is starting to help people become more aware of the dangers posed by counterfeits and knockoffs – including their devastating effect on economic development caused by the retardation of innovation. When fighting counterfeits, we must remember that there are certain structural problems in developing countries that exacerbate the problem. These include technological disparities, poor infrastructure, poor legal mechanisms to protect IP, and high unemployment. Furthermore, high illiteracy rates make it difficult to get the anti-counterfeiting message out to consumers. WIPO has good policy prescriptions for IP enforcement, but many countries need support to develop the legal and physical infrastructure to carry them out. One thing that would be very helpful to customs and law enforcement would be a centralized documentation system to help identify which products are legitimate and which are not. ARIPO recently created a training center which has had three cohorts of students. With external support, they can further utilize this program.
Sibanda also told the audience that intellectual property should be able to address local creativity, including through the protection of traditional knowledge and folklore.
Ricardo Mélendez-Ortiz, Chief Executive Officer of the International Centre for Trade and Sustainable Development (ICTSD) said we should consider sustainable development to include social, economic, environmental justice, and poverty eradication. It should also include the issues of economic competitiveness and access to knowledge. It is clear that the growth of the knowledge economy can help achieve these goals. Therefore, the question is not whether intellectual property should be enforced, but about how we go about enforcing IP to further development.
ICTSD has been working on IP issues for about 15 years, specifically studying the link between IP and trade. The pursuit of IP enforcement was a main driver of the creation of the WTO, and of course the TRIPS Agreement. But these debates took place in the 1980s and the world of today is quite different. There are now efforts to address the shortcomings of TRIPS, and many initiatives (such as the negotiation of bilateral and regional trade agreements) lead to rules that exceed those agreed to in TRIPS. All of this is welcome from a development perspective.
Recent trade agreements negotiated between Europe and developing countries include provisions promoting sustainable development. The language is in the body of the text. However, the relationship between IP and sustainable development is not always straightforward when put into practice. Different stakeholders have different opinions about the best way to implement the provisions aiming to protect IP and promote sustainable development. There are disagreements about where the balance lies.
In TRIPS, there are clear definitions of counterfeits and pirated goods. To move forward with sustainable development, the international community must be clear about what it is fighting when it uses these terms.
In order to have a practical and balanced response to counterfeiting and piracy, we need much more empirical evidence on the role of IP in development, and on the economics of both counterfeiting and enforcement. Better statistics and methods are needed to estimate actual losses suffered by both producers and consumers, and the information should be publicly available. Stakeholders should come together and discuss the costs and benefits.
Finally, we have much to learn from the US, which is serious about the difference between counterfeiting and piracy, and other types of IP infringement that are noncriminal. We also should take care not to block access to public goods.
Tom Thomson, Executive Director of the Coalition for Intellectual Property Rights spoke next, saying that TRIPS is critical for international businesses because it provides predictability. There has been much progress made in respecting intellectual property worldwide since TRIPS was enacted, but problems remain with counterfeiting and piracy that lead to many health and safety problems. We need to find ways to advance intellectual property protection in a way that builds stronger IP protections, and helps to achieve sustainable growth and development. We need to expand the base of stakeholders committed to enforcing IP. To do this, we should work with governments and consumer organizations. Public-private partnerships are important tools for building relationships that strengthen enforcement. We should also look at corporate social responsibility programs. For instance, some companies work with employees to make them more respectful of IP (ie – to stop buying fake goods, and stop using pirated software).
Finally, we need to create environments where businesses can grow by investing in developing markets, and by educating the next generation of local leaders. Currently, many young people do not respect IP, and we should educate them now, while they’re still young.
Antony Taubman, Director of WTO’s Intellectual Property Division pointed out that one of the evolutions of the trade regime from GATT to WTO was the introduction of treaty provisions promoting sustainable development, and that sustainable development is an ongoing concern at WTO. “Sustainable development” and “intellectual property enforcement” are both broad concepts, and there are many versions of what each means. Three issues that dominate WTO’s discussions on IP and development: 1) access to medicines, including the recent seizures; 2) geographical indications, and 3) whether and how the patent system should be used to monitor and enforce the Convention on Bio Diversity.
Taubman said there is a distinction between broad intellectual policy strategies, and specific legal actions taken to enforce a specific intellectual property right. TRIPS provides overarching principles to guide actions taken to enforce IP rights, but it says little about how to make specific choices that will help drive sustainable development. There’s no “manual” for how to use the tools in TRIPS. Enforcement shouldn’t be done in the same way across a range of different countries. There needs to be skill, discretion, know-how, and coherent thinking by both right holders and public officials. In principle, IP is not against sustainable development. Strong IP helps countries develop, but it must be implemented well. Enforcement provisions in Part III of TRIPS include provisions on balance, procedural fairness, and specific safeguards for the benefit of both owners and consumers.
Aline Flower, Associate General Counsel for Global Development at the Bill and Melinda Gates Foundation gave an optimistic presentation about innovation in developing countries. The foundation works with local researchers, and she sees innovation coming from countries at all stages of development. In Gates Foundation-funded programs, African researchers identify problems and come up with solutions. They do so for a variety of reasons, and IP provides real incentives. Their projects will likely result in new technologies. They will have other commercial uses. We want our grantees to manage their IP in a way to ensure continued, stable growth towards the charitable purpose. The private sector is willing to work with us, partially due to our IP stance. There may be a number of motivations for private sector to do what they do, and the Gates Foundation is fine with that.
Flower said that there are two pillars of global access – development of an accessible product, and the prompt and broad dissemination of information to the world community.
