“There has been progressive encroachment of IP upon the ‘pre-competitive’ phase. At the earlier stages of research and development, there’s already a company looking at that and trying to make it not public. There’s a privatization of knowledge and information that should not be privatized. It should still be available for humanity.”
This is the personal view of Guilherme Patriota, Brazil’s Ambassador to the WTO, speaking in a wide-ranging interview with South African filmmaker Ben Cashdan, released this week.
According to Patriota, the Global South is in particular danger of being harmed by copyright implementation which fails to take sufficient account of the public interest in fields such as health and education.
“Developing countries have a harder time facing up to the pressure coming from the private sector and industry lobbying. In highly developed societies, these lobbies can be better managed. You have stronger states. In developing societies, often the system of IP is not as elaborate.”
Multinational companies may use copyright and other facets of the intellectual property system to push up prices of everything from textbooks to medicines in countries such as Brazil and South Africa to levels higher than the prices they charge in the US, Patriota explained. Entertainment platforms can also use weaknesses in the system to boost their profits by underpaying artists and overcharging consumers. “If you see royalty payments from Brazil to the North, they’re all negative for Brazil.”
For Patriota, this is why it’s especially urgent for developing countries to catch up to wealthier countries in implementing copyright exceptions and limitations and other balancing factors into their IP laws.Watch the full interview here. The transcript is also available below:
Can copyright work for the Global South
Personal views of Ambassador Patriota, Brazil Rep to WTO
[Ben Cashdan] (0:06 – 0:54)
Thank you Ambassador for agreeing to spend a bit of time with us. The motivation for being here is that there’s something in common between our two countries. There’s unfortunately a problem in common which is I think we’re two of the most unequal countries on the planet and so development and social justice and equality must be on our minds all the time.
So we want to have a conversation about intellectual property and access to knowledge and we’ve just come from the WIPO General Assembly, the 65th General Assembly. You mentioned in your opening statement: “Brazil”, I’m quoting you now, “continues to be committed to a proper and balanced implementation of intellectual property.” So give us a little sense what does balanced intellectual property mean?
[Ambassador Patriota] (0:54 – 5:18)
Well through time intellectual property evolved and changed considerably from… People still have the idea that it protects the rights of the inventor, like an individual, a person who invented something. Those were the days, I mean they are gone now. A lot of the intellectual property today really belongs to large companies.
It’s in the corporate world, it’s even traded. So you have a market for rights, IP rights, they’re traded, they’re bought, they’re sold. So it’s become a huge business and I think in the end we have lost a little bit the original perspective coming from the middle ages to today that IP rights should first and foremost recognize and compensate duly the original creator, the human behind this.
We’re going to see even new challenges as artificial intelligence takes over the process of invention and innovation. So we’re going to have yet another challenge there but I think we have to bring it back to the human aspect of it. This is in the sort of patent area. When you go to the copyright area, it’s even perhaps even more challenging because back in the old days when the Berne Convention emerged in 1886 it was the writer who was the focus of attention.
You’re trying to protect the writer. So a person spent his whole life writing a book then he should get some reward for doing that and for making it available to the public. He’s disseminated knowledge so there’s a lot of him in that work and you protect the work as it is.
It’s the expression of the work. So you can’t just copy it without his authorization and start producing other books, similar books, you know, lavish copies, unauthorized, that’s considered piracy. But today those days are long gone because with digitization and IT now making copies of other people’s creative works, it could be in literature, it could be audio-visual work, you are a filmmaker so your own productions for example, they are quite simple and easy and almost costless to imitate and to distribute.
So also the IP, the copyright laws, they have shifted but it can’t shift too much. You still need to reward the person, man or woman or child, whoever, but the person behind the creation. So I think that’s the balance and there’s also a different type of balance because here I’m talking about individuals, corporate, corporations balance.
You also have countries that are at the vanguard of creation, that have the means, the money to really prevail. For example, the film industry, there are certain countries that are very rich and wealthy and they are almost hegemonic in the way that they export their movie industry, thinking about Hollywood but we also have Bollywood and others. So also there and music for example, in Brazil we’re very strong on music and now with these new challenges of the digital world, you have the music platforms like Spotify and so this is changing the old way in which you look at copyright and all these things and patents. And you can’t just let it go in a direction of ignoring the different levels of development between countries, the different capacities that nations have to really reward their nationals, their creators and protect them a bit with the asymmetry of power that they have to negotiate their rights with very, very large global companies.
So you need to take that into account. That’s the balance and there’s also a private-public balance that is very important because IP rights are private rights but you also have the public interest. So that’s also a huge balancing act that we have to perform.
We can’t just keep on raising the protection on private rights and diminishing the public interest, the protection of public interest. So we have to keep that balance, there’s many balances to be had.
[Ben Cashdan] (5:18 – 5:32)
And users fall into that last category that, you know, the public interest is to some extent represented by this group we sometimes refer to as users which could include educational institutions and so on. Do you want to say something about that?
[Ambassador Patriota] (5:33 – 5:45)
Well I think it’s users and it’s sort of fields, different categories of things. Of course certain areas I think are more sensitive to this private-public balance that I’m talking about. I think health is one.
[Ben Cashdan] (5:45 – 6:18)
And same thing with knowledge, with textbooks and so on. We have, I don’t know in Brazil, but we have definitely an issue in our public education institutions whether it’s universities or schools of lack of access to textbooks. Textbooks are priced quite highly and we have this sort of debate about: but, you know, you’ve got to reward the authors, you know, people have to be paid for their contributions to writing, but users need access to the books.
But the way you’ve mapped it out it’s not as simple as the authors and the users. You’ve also got the rights holders.
[Ambassador Patriota] (6:19 – 8:08)
Rights holders are usually now intermediaries actually. They’re the ones who remain with the brunt of the profits. But yes I think that’s, I mentioned health, I think education is a huge sector and that’s a sector that is almost like it should be considered national security because it has to deal with the opportunities for young generations to evolve and find jobs and be able to take care of themselves in any society.
And if you make education unaccessible for the youth then how are you going to have a nation in the future? You won’t. You’ll have a nation of people who are unfit for the job market, unfit for anything.
So it’s a dead end. And here again I think the balance is extremely important. We have been defending for many years in WIPO, including in WIPO, this agenda on exceptions and limitations.
We know that many highly developed countries have certain limits that they can impose for the public interest in the area of making, for example, educational textbooks that you can copy. You’re allowed to copy without paying royalties. You’re allowed to access protected work for educational reasons in universities.
All this brings down the cost of education, the price, and makes access more democratic, available to all. Even the non-wealthy families could have access to this material. It’s critically important as a material.
So oftentimes developing countries, which are even more in need of these kinds of mechanisms, they don’t have them.
[Ben Cashdan] (8:08 – 8:23)
Why don’t they have them? I mean it’s a question that’s been on people’s minds for so long at WIPO, but just in common sense. Why doesn’t every developing country tomorrow just pass all the exceptions and limitations it needs?
[Ambassador Patriota] (8:24 – 9:59)
In fact, I think there’s a correlation of forces, let’s say. So oftentimes developing countries have a harder time facing up to the pressure coming from the private sector and industry lobbying. They’re very strong.
In highly developed societies, these lobbies can be better managed. You have stronger states. You have a political system that can minimally keep them in check up to a certain point.
And so the balance is better. In developing societies, often the system of IP is not as elaborate. You don’t have a judicial system that enforces it adequately.
You don’t have judges that are really knowledgeable about IP. So the whole enforcement and implementation of the, it’s a very complex system. So it’s not a system for beginners.
And the nations are not up to the level of using the system with that refinement that you can say, no, no, no, here you’re overstepping. You don’t have those rights in your own country. So you shouldn’t even claim or try to have them here.
We’re trying to give you the same balance that you have in your own country. Oftentimes they don’t accept that. They think that you’re a different country.
Here I want to have more rights. I want to charge higher prices than I do at home. And that happens.
You will see companies charging a higher price maybe in Brazil or South Africa. I’m sure they charge higher prices for medicines in South Africa than they do in Switzerland.
[Ben Cashdan] (9:59 – 10:47)
You said the pressure is from the private sector. Let me quote to you something from the floor of the General Assembly a week ago, where the United States said, “We would like to highlight WIPO’s mandate in Article 3 of the WIPO Convention to promote the protection of intellectual property throughout the world, which remains the proper and necessary lens for evaluation of all our work here. WIPO’s mandate must serve as the North Star.”
North Star, I think, is in the northern hemisphere. So it’s a northern thing. So they’re saying we should focus only – you know, because they’re saying this must be the lens – only on protection of IP.
But they already have the exceptions and limitations. They have things like fair use and so on.
[Ambassador Patriota] (10:47 – 12:04)
Exactly. So one of the things is to export the nice exceptions and limitations and the more appropriate balance that a country like the US has to export it to the developing world. But it’s easier said than done. We’re not trying to subvert the system or to create a system where companies would have less protection in Brazil than they would have in Europe.
No. But we want the exceptions and limitations that you have, the type of social balance and social contract that you have on IP in a country like Switzerland, Germany, etc. We want to have the same kind of balance in Brazil, to be as fair as that.
And often it’s not the case. When you go to a country like Brazil, it’s more lopsided. When you go to other countries in the South, it can be even worse.
You don’t have the checks and balances. So I’m okay with this idea of the US that WIPO has a mandate and it’s an IP mandate. But IP can be many things.
If you’re really purist about IP, IP contains exceptions and limitations. There are limits on the rights. IP is not just unfettered rights.
So when you say IP, I mean, I know where they want to get the US with that. But IP can be drawn in many different ways.
[Ben Cashdan] (12:04 – 13:15)
Now I want to use our example. We’re trying to pass, the government in South Africa has been trying for 10 years to pass a Copyright Amendment Bill, which will bring in more exceptions and limitations and what they consider to be balanced copyright. So it also deals with remuneration of creatives and artists.
But there’s been intense heavy lobbying against the legislation. And 10 years later, it’s still not signed. It was actually passed by the parliament, put on the desk of the President and the President said, I think I’m going to send it back.
It arrived the second time on his desk and it’s still sitting on his desk, you know, many weeks later. And we think behind the scenes, this has all to do with the lobbying by those, you know, who don’t want it to be passed. But the thing which is said is that you would sort of deter the development, the investment of the creative industries.
You’ll make it less likely that publishers or, you know, entertainment companies, streaming companies will invest in the country. What do you make of that when there are those sort of economic arguments made that if you try to reform IP and copyright, you’ll deter investment?
[Ambassador Patriota] (13:15 – 13:58)
Well, I think in many sectors now the investment doesn’t go to the country because a lot of these new technologies allow quite the opposite. It allows a company to work away from the country. They’re not, they don’t have to be localized in the country and they can exploit the country from afar.
So you have an inverted flow coming from the developing countries to the corporation often in the developed world. So there’s a negative flow and divestment, if you will. So the opposite, the opposite is actually happening.
If you see royalty payments from Brazil to the north, they’re all negative for Brazil. But usually you don’t factor that in.
[Ben Cashdan] (13:58 – 13:59)
They flow from Brazil…
[Ambassador Patriota] (13:59 – 14:53)
From Brazil over to the North. Yes, clearly it’s been like that. And the higher the IP protection, the higher the flow.
So there’s a negative balance of payment generated by IP. It often can be a cost, not a benefit for countries. And I can, in the area of entertainment, that’s quite clear.
I mean, we are a hugely creative market with musicians that everybody – I go to Japan – everybody listens to from Brazil. And now how much does the actual Brazilian musician or composer get from their music being played globally? He gets zero.
It all goes to the digital platforms that make this available elsewhere. So they actually encroach upon the rights of individual musicians, creators, composers, the same with the publishing industry.
[Ben Cashdan] (14:53 – 15:14)
So when we try to argue for exceptions and limitations in the public interest, because you want to access textbooks, you want to maybe have educational use of, you know, movies and documentaries and music even. You maybe need to couple that with requirements on those companies to put more into the local market…
[Ambassador Patriota] (15:14 – 16:43)
Into the local market. You will have to negotiate with them, of course, give them fair remuneration because they can also not work without profits. But oftentimes in Brazil, for example, we’re not a country of huge readers. So one of the main, the most important markets for books is the kind of public procurement market for schools and universities.
So if your book becomes a book that is a standard for first grade, second grade, a lot of the government will probably buy your book and distribute them to schools. So the government is a huge purchaser. It has powers.
This happens in the health industry too. The government is a purchaser of drugs because it distributes drugs in its health outposts throughout the country. So governments can also use their kind of purchasing power to negotiate with the publishers a fair price, you know, a price.
And of course, eventually even a level of subsidization has to be considered because you need to make, you know, communities that are deprived have access to these books. You can’t just charge any price. So you may have to have a pricing system.
And here we get back to the issue of the role of the state versus the role of the private sector in areas where the public interest is very high.
[Ben Cashdan] (16:43 – 16:57)
In an era where we have climate change and we have so many global challenges, should there be a ‘Right to Research’ in the public interest to try and address some of these challenges?
[Ambassador Patriota] (16:59 – 19:47)
Well, research and development were always considered pre-competitive activities. So they were not really protected by intellectual property rights. This has also changed a bit.
There has been, you know, progressive encroachment of IP upon the ‘pre-competitive’, they call it, phase. So now where you have people performing research in university in the academic world, for example, because before this was usually considered to be public domain. So if you wrote important breakthrough articles, you would publish it and people could read it and then innovation would accelerate because you would see your colleague, you know, made a breakthrough here and that will speed up your own research elsewhere.
Nowadays, with time, the companies started to, you know, further and further push back the monitoring of where innovation might be coming from. So at the earlier stages of research and development, there’s already a company looking at that and trying to make it not public. So there’s enclosures of knowledge before they even become patentable.
And universities, the big ones, mostly in the developed world, but not only, they already have IP departments within them, dependent. So filtering. So you’re a researcher, you want to publish your work, but first someone else in the university will read it to see if there’s any possibly relevant information there from the patenting or IP point of view.
And they will probably not allow you to publish it if they think there is. So that’s negative because it’s a progressive encroachment on an area that used to be considered public, fair, and there used to be encouragement in the academic world for people to exchange information as it was being produced. Now there’s a delay.
There are controls, even controls on students often. So certain areas that are strategic will not take any kind of student necessarily. They will be monitored to see where they will land afterwards with that new knowledge they acquired. Will this feed into my geopolitical competitor or not, so on and so forth. So it’s a new world. And that’s where I think the balance becomes less favorable to humanity at large.
You get the enclosures, it’s more difficult to access things. So there’s, in a way, a privatization of knowledge and information that should not be privatized. It should still be available for humanity.
In general, you need a pool of knowledge available to humanity. If everything is privatized, then you’re going to have huge pockets of people that won’t have access to relevant information.
[Ben Cashdan] (19:47 – 20:11)
Access to knowledge is such a big issue for us right now in South Africa. We’ve got a stuck process. And the way you talk about it transcends the everyday back and forth, left and right, and all of that, and returns us to a sort of vision of who we are as humanity.
So I hope there would be a day when you could make it to SA
[Ambassador Patriota] (20:11 – 20:15)
Thanks for that. I would be happy to go to South Africa. I’ve been there a couple of times, not for very long.
