Intellectual Property's Digital Divide

[David Farber <dave () farber net>]

------ Forwarded Message
From: Michael Geist <mgeist () pobox com>
Date: Mon, 25 Apr 2005 09:02:30 -0400
To: <dave () farber net>
Subject: Intellectual Property's Digital Divide

Dave,

Of possible interest to IP - my weekly Law Bytes column (posted
below) assesses the recent WIPO Development Agenda meeting, pointing
to the need to bridge the divide between the United States and the
Friends of Development coalition. It concludes that as the developing
world strives to identify effective growth policies, the initiative
has the potential to play an important role in altering the current
intellectual property debate. For it to succeed, however, developed
countries must also become "friends of development".

Freely available hyperlinked version at
http://www.michaelgeist.ca/resc/html_bkup/april252005.html
Toronto Star reg. version at
<http://geistipdigitaldivide.notlong.com>

MG

INTELLECTUAL PROPERTY'S DIGITAL DIVIDE

Earlier this month, the World Intellectual Property Organization
hosted groundbreaking discussions in Geneva. The U.N. agency, which
for years has been associated with ever-increasing intellectual
property protections for the developed world, held talks about
initiating a new intellectual property development agenda that holds
the potential to shift some of its focus to the needs of the
developing world.

Although the precise issues to be addressed within the agenda are yet
to be determined, a key element is the creation of an Access to
Knowledge Treaty.  It could include provisions on access to medicines
and globally funded research, open access to scholarly research, as
well as exceptions to patent and copyright laws that serve the
interests of the developing world.

The agenda, which was initially proposed last summer by Brazil and
Argentina, has quickly gained momentum.  The most tangible result so
far is the emergence of the Friends of Development coalition,
comprised of 14 countries including Argentina, Bolivia, Brazil, Cuba,
the Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra
Leone, South Africa, Tanzania and Venezuela.  The coalition's support
for the development agenda at the Geneva meeting remained steadfast
against U.S. opposition, as these countries made it clear that global
intellectual property rules must do a better job of meeting the
interests of both the developed and developing world.

While the attendees agreed to resume the development agenda dialogue
in the coming months, the IP digital divide should not be
underestimated. Countries from both the developed and developing
world may be discussing intellectual property but they do so from
perspectives that at times appear to be polar opposites.

The United States stands at one end of the spectrum with its vision
of an intellectual property development program premised on
"technical assistance" including the creation of stronger
intellectual property administration and enforcement.  Ignoring the
fact that most developed countries were slow to adopt strong IP
protection during their developmental phase, it disputes the notion
that intellectual property rules have become one-sided.  Instead it
maintains that stronger IP laws will lead to developmental benefits
for all countries, regardless of their economic status.

India eloquently presented the perspective from the developing world.
It argued that the current emphasis of technical assistance on
implementation and enforcement issues is misplaced, emphasizing that
the focus should instead be placed on assessing the impact of
intellectual property rules on the developing world.

Moreover, India noted the developing world's need for access to
knowledge, commenting that
"neither intellectual property protection, nor the harmonization of
intellectual property laws leading to higher protection standards in
all countries irrespective of their level of development, can be an
end in itself. For developing countries to benefit from providing IP
protection to rights holders based in developed countries, there has
to be some obligation on the part of developed countries to transfer
and disseminate technologies to developing countries."

Although the recent meeting marks an important step forward, the
emphasis on access is likely to continue face significant opposition.
In the weeks leading up to the meeting, WIPO indicated that many
non-profit groups representing developing world interests would be
excluded on the grounds that they were not "WIPO accredited." That
position threatened to create a peculiar dynamic in which developed
world delegates would greatly outnumber representatives from the
developing world at a meeting designed to address developing world
concerns (WIPO ultimately acquiesced on this issue).  Furthermore,
while WIPO slowly considers development concerns, developed world
initiatives, including a new Broadcasting Treaty and efforts to
harmonize patent rules, move full steam ahead.

The intellectual property digital divide is evident beyond the halls
of the United Nations. Last week I attended a conference on Internet
and intellectual property law issues in Beijing, China. The U.S. was
represented by an embassy official who emphasized both the need for
stronger criminal penalties for intellectual property infringement
and the creation of policing institutions to address these issues.
The official vigorously exhibited his disagreement when a Hong Kong
law professor questioned the U.S. position, outlining many of the
same concerns as those expressed weeks earlier in Geneva.

Moving beyond these hardened positions will require countries from
both the developed and developing world to step up to bridge the
divide.  In many respects, Canada is ideally suited to break from the
developed world pack to assume a leadership position.  The federal
government has set development assistance as a priority, committing
significant new funding towards aid programs.  The developing world
needs more than just dollars, however.  Canadian political support
for the developing world's perspective on intellectual property needs
would carry long-term benefits that would extend well after the
current round of aid funding is exhausted.

Moreover, Canada's own intellectual property position is closer to
the developing world that most might think.  Despite the fact that
Canada is a signatory to virtually all major intellectual property
treaties, it remains a net importer of copyrighted work and ranks
toward the bottom of G8 nations for pharmaceutical research and
development.  Our experience illustrates that intellectual property
laws are important, but serve as only a small part of an overall
policy designed to foster innovation, creativity, and economic growth.

As the developing world strives to identify effective growth
policies, the WIPO development agenda has the potential to play an
important role in altering the current intellectual property debate.
For it to succeed, countries such as Canada must also become "friends
of development".
-- 
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
mgeist () pobox com              http://www.michaelgeist.ca



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