A gain for the public domain

Becky Hogge
13 March 2007

Almost two years ago, openDemocracy ran an interview with Cory Doctorow, then an Electronic Frontier Foundation (EFF) activist, entitled "Democracy and Dissent at the World Intellectual Property Organisation". The article exposed a United Nations organisation - as Geneva-based WIPO is - straining to accommodate a different point of view: that stronger and stronger patents, trademarks and copyright-law protection for ideas and their expression do not necessarily lead to the best outcomes for human development. Doctorow spoke of crude attempts to subvert the EFF and its allies' message, and of dirty tactics at the negotiating table.

Conducting the interview, I held out little hope for WIPO. That it was even part of the UN seemed an anomaly. Mainly funded by the international registration of patents and trademarks, how could it ever be persuaded to take a second look at arguments which question the link between strong intellectual property (IP) protection and development?

Formerly openDemocracy's technology editor, Becky Hogge is executive director of the Open Rights Group. Her writing on music, technology and intellectual property law has been published in several British and international publications, including the UK Guardian, Index on Censorship and Dazed and Confused. She blogs here

Read Becky's "Virtual Reality" column on openDemocracy here

WIPO was formed in the late 1960s, replacing the bureau that administered the Paris Convention (on patents) and the Berne Convention (on copyright). These conventions date back to the late nineteenth century, when - according to the WIPO website - "the need for international protection of intellectual property became evident [as] foreign exhibitors refused to attend the International Exhibition of Inventions in Vienna in 1873 because they were afraid their ideas would be stolen and exploited commercially in other countries."

According to the convention that established WIPO in 1967, the organisation exists to draft international standards for the protection and enforcement of intellectual-property rights. But in terms of development, what this mandate ignores is that, prior to the 1873 Vienna exhibition, countries had benefited from pirating one another's ideas rather rampantly. It was only when they got to this later stage in history that intellectual-property protection became needed. Seen in this context, promoting industrial and post-industrial standards of intellectual-property protection across the developing world doesn't look very logical.

Until recently, WIPO had more or less succeeded in ignoring this reality. But then, in late February 2007, something wonderful happened. Member-state negotiators tasked with reviewing the organisation's support to the developing world, made their first set of "development agenda" recommendations. (Talks had been going on since 2004, when Argentina and Brazil put forward the idea that WIPO needed to change.) One of the key recommendations is that the organisation consider the value of the public domain - the body of knowledge which is not protected by intellectual-property law - as it goes about drafting international standards on intellectual property. In the future, WIPO is to "deepen the analysis of the implication and benefits of a rich and accessible public domain".

The scene has been set, then, for a full debate on just how useful strong intellectual property is for development. And although it has taken over two years, one senses that many delegates from the global south, not to mention pro-reform observer NGOs, did not expect such an encouraging result so early. "WIPO and its member states have done something very positive, and surprising - both because it signals important reforms and because it happened with very strong support from all of the WIPO members, including the United States and members of Europe", wrote James Love, head of the Consumer Project on Technology and a veteran of the WIPO negotiating table, in the online Huffington Post.

Overall, 24 recommendations - distilled from over 40 proposals during the February negotiations - will be put to the WIPO general assembly come September. A further set of 71 proposals will be discussed in June, covering education and access to knowledge issues in more depth. But in terms of worldwide reform, these future hurdles to a more sensible outlook on development and IP are coupled with even higher barriers from other, more powerful, international intellectual-property agreements.

In the years since Argentina and Brazil proposed the development agenda, many strong-IP advocates left the table. Disconcerted by the power of developing countries to block strong-IP proposals in a forum based on decision-making by consensus, these developed countries moved their negotiating muscle elsewhere. Specifically, they went to the General Agreement on Tariffs and Trade (GATT), which was soon to become the World Trade Organisation (WTO), and to its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The TRIPS accord, which came into force on 1 January 1995, sets out minimal standards for IP enforcement. Although the compliance period for these standards has been extended to 2016 for the world's least-developed countries, such standards threaten, nevertheless, to prevent the developing world from enjoying the free flow of ideas and their expression which so aided today's developed nations during the west's industrial age.

Combined with the trend towards extension of IPs in term and scope, TRIPS threatens to sentence the developing world to perpetual bondage by the developed one. Indeed, as Andrew Gowers put it to me on the day in late 2006 that he published his review into British intellectual property law: "[I]f you look at the whole swathe of developing countries, from the successful ones to the poor ones, does the one-size-fits-all approach [compelling adoption of an industrial nation's standard of IP protection] really work? The answer is, it makes no sense."

The IP-reformers have done a great job at WIPO, and we should wish them luck in the final stretch of negotiations. And once, as is hoped, the organisation embraces the public domain as a force for good in development, reformers will have in their service a fine implement to help peel away the layers of strong IP assumption that go into the thinking at the WTO. But with the UN behind them and the WTO in front, the reformers will have only reached the starting line of most other international campaigns for human development.

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