WIPO and the Future of Intellectual Property

Nirav Bhatt is an LLM candidate at Osgoode Hall and is taking the Intellectual Property Theory course.

WIPO has been the forefront organization within the United Nations (UN) dedicated to develop a balanced and accessible international Intellectual Property (IP) system. Although it was established in 1967, its history stretches back to one hundred and thirty years, to the treaties of Paris and Berne. Today, the role of WIPO is uniquely influential in setting innovation policy worldwide.

Professor James Boyle in his article on “A manifesto on WIPO and the future of Intellectual Property” reflects his views on international IP policy and how the World Intellectual Property Organization (WIPO), as an organization, can help to make the indispensable changes required. Boyle argues that IP laws are “legal sinews” in this information age affecting everything from a price of a drug to patterns of international development, communications, internet etc.  They are not an end in themselves, as the rules create more room for innovation and creativity and stresses that these rights should be set at the correct levels by interpreting the rules in a proportionate manner.

Boyle recalls that WIPO’s primary objective is to harmonize IP laws internationally but from the eyes of United Nations Organization (UN) it is even broader—to promote creative intellectual activity and facilitate the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development. This leads to the argument that fundamental changes need to be made in the role and attitude of the organization to serve its real goal. Boyle proposes possible approaches to achieve these goals.

The balance between the public domain and realm of property has been lost since IP rights have expanded exponentially. The contemporary attitude seems to be that the public domain should be eliminated and therefore IP policy is in the sway of a maximalist rights culture.  Boyle suggests that maximalist agenda is not a good policy for even the developed world as it represents the interests of a narrow range of businesses and with very little democratic scrutiny. It would therefore be a tragedy for such a UN agency to adopt the narrow and biased maximalist rights culture.

The maximalist rights culture to me is one step forward and two steps backward as it tends to take away more from society which requires access to educational, cultural and social knowledge. It’s inclined more towards a rigid legal framework with very little space for maneuvering innovation. Having such a strong rights culture is detrimental in the long run, which was not the intention of the framers of the policy who decided the term of protection of the author or inventor and their work appearing in the public domain. Adopting a maximalist rights culture will leave some of the developing counties soaked to the skin and therefore the relationship of innovation and public domain should be symbiotic.

Although TRIPS and WIPO make claims for flexibility, the push has been to develop TRIPS plus reforms in developing countries through bilateral or regional agreements. These reforms have been an elephant in the room, as some of the developed nations have made special arrangements with their trading partners and so the “one size fits all” mantra for the International IP policy has been widely condemned in both developed and the developing nations.

Boyle goes on to explain that WIPO also presides over the harmonization of the laws to regulate citizen publishers of cyber space. Communications technology affords the capacity of duplicating easily, and has created many piracy problems and unauthorized distribution. But the use of strong IPRs to prevent these activities presents another risk – it hampers the ability of the Internet to encourage and distribute innovations and culture worldwide. The Internet should be regarded as a true democratic form and IP rules need to embrace this fact. The current IP system does not adequately address certain pressing human problems.  If pharmaceutical patented medicines wouldn’t be able to supply adequate medicines for the global poor, it is not a criticism of drug companies but of the belief that the patent system is the only way to produce innovation.  Therefore WIPO should be more hospitable to proposals that attempt to reform, but it is tragic that it has taken more than a century for us to return to alternative approaches for encouraging innovation such as state sponsored prize systems.

Boyle views IP policy reforms through the lens of environmental policy. Just as sustainable development was the criterion from the environmental protection perspective, we need to have balance between right and the pubic domain in IP policy. This argument has implications far beyond WIPO. To abandon the tunnel vision of the maximalist rights culture, Boyle proposes seven principles: balance, proportionality, appropriate development, participation and transparency, openness to alternatives, embracing the net as a solution and neutrality. Boyle concludes that although the trade negotiations have become the preferred arena for expanding rights still further, these trends should be reversed for international, informed, and democratic debates. WIPO’s role in that debate is a central one and it should embrace that role, rather than seeking to jump onto the bandwagon of ever-expanding rights.

The criticism to Boyle’s manifesto is twofold.  First, it does little to classify these rights from the standpoint of different developing nations. To use the words of Shamnad Basheer, the black and white categorization of developed and developing nations ignores technological heterogeneity between developing countries. Second, the manifesto should have touched upon the issues of hegemonic international IP policy and how can a neutral body (not one in which the members have a conflict of interest) arrive at a possible solution for framing international IP policies.

In a recent work, Jeremy DeBeer posits a rather more optimistic view in light of the General Assembly of WIPO unanimously adopting forty-five recommendations regarding IP and development in 2007.  This is being viewed as an attempted paradigm shift for IP policies in the twenty-first century. Its key demand is to re-establish the public policy aspects of IP rights, emphasizing that the protection and enforcement of IP cannot be an end in itself.  This shift alleviates some of Boyle’s concerns towards hegemonization in IP Policy making. Thus, WIPO’s development agenda rejects a one-size, (especially an extra-large size), model of global IP law.

  1. Tony Pak is a JD candidate at Osgoode Hall and is taking the Intellectual Property Theory course.

    I agree with Professor Boyle that WIPO does need to increase its role in shaping Intellectual Property policy. However, I don’t think Professor Boyle meant to distinguish nations by their level of development as Shamnad Basheer criticizes. From Boyle’s manifesto, it certainly appears that a black and white categorization method is being applied. I believe this is a result of Boyle’s comparison to environmental policy and his use of the environment as an example of the interconnecting system that intellectual property policy actually represents. Environmental debate is frequently cloaked in the categorization of developed and developing nations. I think it was rather an unfortunate byproduct of Boyle’s comparison that led to the opinion that he wished to categorize nations as either developed or developing.

    Furthermore, Boyle advocates for seven general principles to guide WIPO. Of those seven principles, the principle of “Developmental Appropriateness” suggests to me that Boyle is not actually advocating for a clear black and white distinction between developed and developing nations. The principle of “Developmental Appropriateness” discusses how intellectual property has actually changed with time, space and economic development and Boyle advocates that intellectual property should develop as it did through history and away from the concept of maximalist rights. In my opinion, this principle leaves enough room to consider the technological heterogeneity between nations.

    On the other hand, the forty-five recommendations made in 2007 are likely not a cause for unbridled optimism. De Beer, himself, cites some potential pitfalls within the recommendations. For example, recommendation number 12 states that WIPO should “further mainstream development considerations.” De Beer points out that there is nothing in that recommendation to define furthering development beyond economic considerations. He also points out that, in order to reach a consensus, the recommendations were purposely worded such that they would be ambiguous. He cites that ambiguity allows for malleability, but in my opinion, it could also allow for maintenance of the status quo.

    Historically, the United Nations has been heavily influenced by the wealthier nations much like how lobby groups influence policy in the domestic arena. The net exporters of intellectual property are normally the ones who lobby the most for an expansion of intellectual property rights and frequently, these exporters of intellectual property are the wealthier nations. The interests of the users are, therefore, usually underrepresented at the policy making stage. This is true in the domestic arena and it appears that the same phenomenon gets translated into the international arena. Even if WIPO is able to resist the influences of the wealthier nations, there is nothing to prevent those same nations from forcing their ideas with respect to intellectual property onto the poorer nations through international treaties and trade agreements. Thus, although malleability could give flexibility to the implementation of intellectual property in different areas, it could just as easily be exploited by wealthy countries and provide them with the justification that they are within the bounds of the recommendations of WIPO.

    I sum up by saying that I do not mean to undermine or belittle the significant achievement of obtaining consensus between so many member nations, but it just seems that many of these recommendations are rather hollow and there is still a very long way to go before these recommendations are implemented in any meaningful way.

  2. Thanks for your comments Tony. I would like to clarify that as mentioned above, the black and white categorization discussed here refers to the different developing nations and not the developed v. developing countries debate. Therefore this point comes as criticism that the author does little to address these voices from different developing countries perspective. As pointed out on page 3 bottom paragraph in his article, the author says that when it comes to IP policy, developing countries are “hardly a homogeneous group” and therefore it doesn’t explain as to where the line should be drawn when considering IP policies from different developing nations perspective. Further, the technological heterogeneity between nations is meant within the different developing countries. Therefore, developing countries which are technologically more proficient in one or more areas of technology may require different IP norms than their relatively less proficient counterparts.

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