Tuesday, 13 January 2009

International Opportunities for the Obama Administration and the EU “to do Good” on Patent and Copyright Policy in the Next Four Years

1. Introduction
The need for intellectual property (IP) policy and rules to adequately respond to socio-economic and technological transformations of recent decades and to development imperatives has been recognised internationally for some time now.
 The adequate response should entail:
-Rebalancing patent and copyright rules and policy to better reflect the public interest;
-Evolving international standards on patents and copyrights based on better socio-economic evidence and impact assessment;
-Taking better account of the different levels of development of different countries that make up the community of nations; and
-More openness to new business models which may not necessarily require exclusive rights as incentives.

Efforts to address these needs by different stakeholders, most notably, civil society organisations, developing countries and academics and researchers as well as enlightened funding and development agencies have so far yielded important positive results. Some of the milestones include: the adoption of the Doha Declaration on the TRIPS Agreement and Public Health in 2001; the report of the World Health Organization (WHO) Commission on Intellectual Property Rights, Innovation and Public Health (CIPIH) in 2006; the adoption of a development agenda for World Intellectual Property Organization (WIPO) in 2007; the adoption of the WHO Global Strategy and Plan of Action on Public Health, Innovation and IP in 2008 as well as a new work programmes for the WIPO Standing Committee on Patents (SCP).

At the same time, however, other stakeholders, most notably, industry groups and lobbyists in the pharmaceuticals, software, film and music industries and the US and EU governments together with their Organization Economic Cooperation and Development (OECD) partners have embarked on various initiatives to ratchet-up or create new standards and rules on patents and copyrights especially in the area of enforcement. While some of the concerns raised by these groups and governments are legitimate, they efforts have largely been based on inflated figures of business losses from IP infringement, fear mongering and threats, forum shopping and lately, in the context of the negotiations on the proposed Anti-Counterfeiting Trade Agreement (ACTA), dubious treaty-making or what I call “counterfeit policy-making”.

Overall, however, in the next four years, the Obama administration and the EU, have a number of opportunities to do good, meaning that they can meaningfully contribute to promoting balanced and opportunity enhancing international patent, copyright and access to knowledge policies. Below, I outline what are the main opportunities that the Obama administration and the EU can seize to do good in the next four years. But first a few words on the role of leadership in doing good.
2. Doing Good: The Role of Leadership
“Change has come to America” Obama declared during his victory speech on 4th November 2008. In simple terms, when Obama talks about change coming to America, I assume that he means that by virtue of the change in leadership there will be changes in the political and socio-economic operations in the country and beyond. For a person who works on international patent and copyright policy as well as innovation for development, the question I ask myself is: What change has come, or is coming, with respect to the approach of America to global knowledge governance and on patents and copyright policy?

The ability of the Obama administration and EU institutions to do good on patent and copyright policy will depend on leadership both at the top and within the ranks. In the current global circumstances, US leadership will probably matter the most. For the US to do good on the international stage will require engagement and real leadership from Obama himself as well as at four other levels, at least. Leadership will be required of whoever occupies the position of: ‘IP Czar’, as the new White House position on IP enforcement has come to be popularly known; the United States Trade Representative (USTR); head of the United States Patent and Trademark Office (USPTO); and head of the United States Copyright Office. Leadership at these four levels will mean, at least, that when these people take the plane or send representatives to Geneva or to Latin American, Asian or African capitals for negotiation or discussions on IP they will be thinking of engaging partners, negotiating for legitimate interests based on evidence and facts as opposed to the attitude that they are going to meet ‘IP thieves and pirates’, ‘counterfeiters’, ‘communists’ etc.

Of course, for leadership on the Obama administration side and in the EU to lead to anything there has to be similarly enlightened leadership of countries like Brazil, India and African countries such as South Africa, Egypt, Kenya and Nigeria. The ability of these countries to be real partners and to defend and promote their initiatives also based on evidence and facts and to follow through key agendas will be critical to avoid a situation where the agendas of international organisations are filled up with only on hot air. Equally important will be the leadership and sensitivity in key international organisations such as WIPO, WTO, WHO, the World Customs Organization (WCO), among others. Finally, an understanding of the importance of good global policy on knowledge governance and, by extension patent and copyright policy will be required of the leaders of major funding and development agencies. Foundations and development agencies which claim to be interested in innovation for development and in the public interest in the knowledge society but fail to support the evolution of balanced and opportunity enhancing patent and copyright policies are clearly not good partners in any effort by the Obama administration or EU institutions to do good on global knowledge governance.
3. Opportunities to do Good on Global Patent and Copyright Policies
Without re-inventing the wheel, and without any many major policy reversals, the incoming US administration and the EU institutions have a range of opportunities to do good in international patent and copyright arenas. In particular, there are opportunities to significantly contribute to meaningfully addressing the challenges we face in the areas of: innovation and access to medicines; patent standards including questions around mechanisms to support collaborative and other business models; copyright in the digital age; and IP enforcement. There is also a basis to do good in other areas and forums.

3.1 Doing good on innovation, health research and access to medicines

The relationship between patents and access to essential medicines especially in developing countries has been a point of major controversy in international IP policy-making. On the one hand, developing countries and health groups have argued against current approaches to patent rights in the pharmaceutical sector on the basis that the monopoly-based approach relies on high medicines prices which puts these essentials out of the reach of those who need them most. On the other hand, developed countries, such as the US, have argued for stringent minimum rules on the basis that such protection was essential for innovation. Without resorting to the name calling, intimidation or insults, in the way that certain industry lobbyists have done, a small but dedicated group of civil society organisations, academics and researchers decided to find a way in which the legitimate concerns of industry and innovative businesses regarding incentives and funding could be addressed while assuring access to essential medicines for all. It is through these efforts that we now have A Global Strategy and Plan of Action on Public Health, Innovation and IP, which was adopted by the World Health Assembly in May 2008. We now face the challenge of implementation and monitoring.

The Global Strategy “aims to promote new thinking on innovation and access to medicines as well as ... provide a medium-term framework for securing an enhanced and sustainable basis for needs driven essential health research and development relevant to diseases which disproportionately affect developing countries...” To do good, the Obama administration and the EU have to politically and financially support the implementation of the Strategy including insisting that the expert group on financing comes up with workable solutions and not shortcuts. There is also a need to avoid a multiplicity of half-baked new initiatives and to promote transparency at the WHO. If WHO succeeds in missing this opportunity to address the 10/90 gap now the issues will come back again to occupy the international policy space that could be utilised to address other issues. It must be remembered that while we have known of the 10/90 gap for a long time the initiative to look for innovative solutions did not come from within the WHO Secretariat but rather through the efforts civil society and NGOs, countries such as Kenya and Brazil, academics and researchers and a few funding agencies.
3.2 Doing good on patent policy
The geo-economic transformations that we are witnessing today coupled with the current financial crisis and the attendant employment and competiveness worries means that we are likely to see increased pressure on the patent system and patent policy. There are clearly many opportunities for the Obama administration to do good on US patent reform with spill over effects internationally. But there are even greater opportunities to do good at the international level.

We would remember that between 2002 and 2007 the US, the EU and Japan tried, unsuccessfully, to ram down the ‘throats’ of other nations an international patent reform package in the name of the draft Substantive Patent Law Treaty (SPLT) at WIPO. That effort failed because instead of seeking to convince other countries, the US and the EU decided to use intimidation, threats “to leave WIPO” and, with the connivance of the ex-Director-General of WIPO, secret conclaves that sought to by-pass proper governmental machinery in countries like India. In the end, sanity has prevailed and now WIPO has the most forward looking agenda on patents in its history.

The agenda seeks to address a range of important issues of interest to all Members states and, most importantly, to many stakeholders who, hitherto, were not considered stakeholders in the patent system. In particular, the current work programme of the SCP includes work on: economic impact of the patent system; transfer of technology; competition policy and anti-competitive practices; dissemination of patent information; standards and patents; alternative models for innovation; harmonization of basic notions of substantive patentability requirements; disclosure of inventions; database on search and examination reports; opposition system; exceptions from patentable subject matter; limitations to the rights; research exemption; compulsory licenses; client-attorney privilege; patents and health; the relationship between the patent system and the CBD; and relation of patents with other public policy issues.
To do good on patent policy internationally the Obama administration and the EU can do no better than to support balanced and results-oriented execution of the new WIPO programme.

3.3 Doing good on copyright policy

The internet and other advances in communications technologies have unleashed many opportunities for innovation, entrepreneurship, social interactions and political participation. Instead of these transformations ushering in an era for rethinking copyright policy to enable both consumers and creative communities to benefit, however, we have seen an explosion of demands for new copyright and other related rights. Following the conclusion of the WIPO Internet treaties in 1996, the international community has mainly dedicated its energy on a rather dubious attempt to introduce new exclusive rights for broadcasting organisation in the name of preventing ‘broadcast signal piracy’. This was a brainchild of the Europeans with the support of the US. This effort faltered because when the proponents were confronted with basic questions about justification, evidence and proportionality they had no convincing response.

In the last few years, with the leadership of Chile, the question of limitations and exceptions has been given some space on the agenda of the WIPO Standing Committee on Copyright and Related Rights (SCCR). In the latest session, a concrete proposal was presented on exceptions for the visually impaired. The case to move on this proposal is not only backed by good evidence but is compelling. The studies done or commissioned by the WIPO Secretariat as well as information meetings they have organised on exceptions have also shown the importance of the issues not only on the question of exceptions for the special needs but more generally.

To do good on copyright the Obama administration and the EU could do alot of service to the world by dropping any demand for further negotiations on broadcasting organisation, until there is better evidence and instead support the agenda on limitation and exceptions. The result of such a process would benefit not only people in developing countries but in the US and in many European countries as well. Of course, other issues that are shown to merit attention should also be addressed by the SCCR in the next four years.

3.4 Doing good on IP enforcement

Current US and EU initiatives on enforcement such as ACTA and work at WCO threaten to do alot harm, especially in developing countries. ACTA is a particularly worrisome development. The stated goal of ACTA is to establish ‘a common standard of IP enforcement to combat global infringement of IP’. It is clear from the stated goal of the effort that the standards sought to be developed will not only apply in the participating countries but to other countries including being a basis for processes such as the Special 301 Reports or technical assistance programmes for developing countries.

There is no denying that any group of countries have the sovereign right to negotiate trade or other agreements to address shared concerns within their territories. So why is ACTA a problem? The problem with ACTA, simply stated, is that a small number of countries, driven by a narrow set of industrial interests, are proposing to tackle what they call ‘a global problem’ by developing a tool with ‘global reach’ while excluding the majority of the world population from the standard-setting process.

To do good on IP enforcement the Obama administration can start by reversing the Bush administration’s policy of secret negotiations which lack democratic credentials not only internationally but in the US itself. The new Commission in Europe at the end of the year should follow suit. If the US and EU cannot provide convincing evidence and argumentation why international institutions such as WTO and WIPO should address new enforcement standards then something is quite wrong with the evidence-base.
3.5 Doing good in other forums and processes

There is no doubt that IP policy issues and demands for new rules or regulations will crop up in various other arenas. The UN Climate change negotiations are one good example where patent and technology transfer issues have become prominent. There is a broader opportunity for the Obama administration and the EU to always do good whenever IP issues come up in negotiations. This could be done by applying the principles on norm-setting agreed under the WIPO Development agenda in 2007. While these principles were agreed in WIPO they are applicable to any other international IP norm-setting activities.

In this regard, the Obama administration and the EU can do good on patent and copyright policy at all times by supporting the application of these principles more widely. The said principles include that norm-setting processes on IP should:
-Be inclusive and participatory taking into consideration the interests and priorities of all stakeholders;
-Take into account different levels of development in different countries;
-Take into consideration a balance between costs and benefits of new norms or rules;
-Be supportive of the development goals agreed within the United Nations system, including those contained in the Millennium Declaration; and
-Should address, as appropriate, issues such as flexibilities, exceptions and limitations for Member States and special provisions for developing countries and least-developed countries (LDCs).

While these are basic principles of good governance, they are often forgotten in the IP policy-making processes.
4. Conclusion
The Obama administration and the expected new European Commission towards the end of the year have a range of opportunities to do good on patent and copyright policy. To succeed in doing good will require credible leadership not only at the top but within the ranks including at places such as the USTR and USPTO. Success will also, however, depend on leadership from developing countries and by the Director-Generals of international institutions such as WIPO, WTO and WHO.

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