Intellectual property: whither the common interest?
By Zubeida Mustafa

The World Intellectual Property Organization (WIPO) recently held a seminar for journalists in Geneva with the idea of sensitizing them to the sanctity of intellectual property (IP) and its importance in today's knowledge-based societies.
The issue has assumed extraordinary urgency since the World Trade Organization (WTO) was launched in January 1995 and the Trade Related Intellectual Property Treaty (TRIPs) came into effect a year later. Since this treaty prescribes sanctions against countries which are seen to be failing in providing protection to intellectual property, the issues of patents, copyrights, trademarks, industrial designs and geographical indications can be used to pressurize the third world countries where piracy is rampant.
Although WTO, it is feared, will use strong arm methods when the time comes, WIPO's role will also be crucial. Describing itself as the organization of the future, this body wants to nudge its 179 members gently towards recognizing the importance of intellectual property in the context of creativity and innovation. Hence exercises such as seminars for journalists to spread the message that the intellectual property system (IPS) helps to secure the commercial viability of innumerable industries which employ millions of people. According to Mr Khamir Suedi, senior director WIPO, who made the opening statement at the seminar, "Without the incentives offered by the intellectual property system, we would be deprived of many of today's life-saving technologies, the wealth of music, books, and films which make our lives so rich." Prima facie, this has a powerful moral and ethical appeal. For over a century mankind has been struggling to set up a system to protect the intellectual creation of a person so that he profits from his efforts. From the Paris convention for the protection of industrial property in 1883, the world community moved on to the Berne convention for the protection of literary and artistic works in 1886 and finally - with mamy other international treaties in between - WIPO in 1970. With the globalization of the economy the reach of IPS has also spread far and wide. With a concerted move to institutionalize at the global level the protection of IP rights, a number of treaties and agencies now facilitate the registering of patents, trademarks and industrial designs. The Patent Cooperation Treaty, the Madrid Agreement on International Registration of Trademarks, and the Hague Agreement on International Deposit of Industrial Designs have set up their bureaux in Geneva to deal with all the paperwork (in some cases computer files only) which is essential if the system has to work smoothly and efficiently. Now a producer can obtain protection for his inventions and designs internationally with a click of the computer mouse and after his application has been duly processed. In some cases an application can be filed directly without even a national deposit.
The Geneva seminar was a useful exercise, since some of the 20 or so participants admitted that there was absolutely no awareness about the importance of IP in their countries. Others pointed out that with so many more urgent and life-threatening issues on their plates, the media would often put IP on the backburner. It was also pointed out that enforcing IP laws is at times difficult because of economic factors. When prices are high and a good can be pirated and sold at rockbottom prices, an illegal market inevitably emerges which can be extremely difficult to check in spite of a government's good intentions.
As things stand at the moment, the IPS is seen as working in favour of the developed countries - the net producers of IP. It is interesting to note that more than 95 per cent of the applications for patent registrations in 2001 came from industrialized countries or non-residents in third world countries - the US alone accounted for 38.5 per cent of the applications last year.
It is very strongly felt that the developed countries are now trying to use IP protection to their own advantage to create monopolies for themselves. The number of international applications for patents with WIPO shot up from 7000 in 1985 to 104,000 in 2001. When they were in the process of industrializing, the Western powers did not display the same scrupulousness they are now demanding from third world countries in respecting IP rights. History is replete with instances of how the European states and Japan "stole" - if the use of that word is permissible - technology and knowledge to develop their own industrial base. The fact is that IP has the potential of becoming a North-South issue of the 21st century when the WTO actually starts using it to penalize the developing countries which the industrialized giants want to keep under check. The IPS being drawn up - the Intellectual Property Treaty has globalized US-style patent laws which give a monopoly in an enlarging market for 20 years to the inventor/innovator to charge prices ostensibly to recover the cost of research but in reality to earn hefty profits.
In a cut-throat capitalist system which seeks to maximise profits, IP rights tend to favour those who are already economically strong. As the UNDP pointed out in its Human Development Report 2001, the ideal regime for IP rights should strike a balance between "the private incentives for innovators and the public interest of maximizing access to the fruits of innovations". The Universal Declaration of Human Rights 1948 also recognizes the right of an author to the protection of the moral and material interests resulting from his scientific, literary or artistic production. But it also goes on to declare that everyone has the right to share in scientific advancement and its benefits.
Admittedly, WIPO also invokes this balance which is recognized by TRIPs which calls for "the promotion of technological innovation" and "the transfer and dissemination of technology". In practice, however, the thrust appears to be towards protecting the monopolistic rights of IP producers - the extension of the patent protection period from 15 to 20 years is one indication. The other is the broadening of the areas of economic activities in which the industrialized countries are seeking to consolidate their advantage, such as agribusinesses, biotechnology and computer software. In some cases the criteria for granting patents are so loosely interpreted that the balance has tilted heavily towards the industrialized countries which are moving from an economy based on fossil fuel and rare metal to genetic and biological resources. Jeremy Rifkin calls the present age "the biotech century" (also the title of his thought-provoking book). He quotes horrifying instances of the US Patent Office giving patents on life - viruses, genes, cells, body parts and plants.
What are the implications of the present IP system? In the first place it has, according to the UNDP, allowed the industrialized countries to use technology as a means of competitive advantage in the global economy. Although TRIPs requires the developed countries to "provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed members", this option has remained a neglected area.
Secondly, traditional knowledge which was regarded to be common property is being shifted to the private sector. Thus the claims to the properties of the Neem tree, turmeric and basmati rice have led to disputes which underline the potential dangers lurking on the horizons. Thirdly, pharmaceutical manufacturers are pricing many of their products out of the reach of the poor in the third world. Although options are available under the law to adopt measures such as manufacture of generic drugs, compulsory licensing and tiered pricing of brand names, the multinational drug companies have not allowed them to be used. A lot of controversy has been generated where some third world countries such as South Africa, India, Brazil and Thailand have resorted to the manufacture of generic drugs for AIDS.
In this scenario, it is not surprising that many in the third world regard the prospects for IPS to be gloomy. However, the situation can be improved by adopting a rational approach. This calls for WIPO to act as a watchdog for public interests of the community in the developing countries rather than a service provider for the patent applicants from the industrialized states. WIPO is aware of the nature of the controversy which surrounds this sector. The seminar opened by defining the "myths" and detailing the "reality". This was its answer to Vandana Shiva's powerfully argued book Patents: myth and reality.
On paper the arguments appeared convincing - but only on paper. For instance, when the organization speaks of protecting the work of inventors everywhere, one can well ask who are the inventors who benefit? Does it actually help the third world countries by stimulating domestic innovation, fostering new industries leading to sustained economic development and improving healthcare as claimed by WIPO?
There is need for WIPO to shift its thrust towards the common interest - the economic, cultural and social progress of all mankind. Since it generates a substantial income for itself, theoretically speaking it should be in a position to act as an independent agency. But with more than 75 per cent of its budget coming from the fees it charges for the global protection services and most of these being paid by the big manufacturers in the West would they allow the organization to set up an IP system which is not harsh vis-a-vis the third world?
Finally, would it be a cry in the wilderness to ask those who arue for IP rights to give monetary incentives to inventors, what were the profits the Galileos, the Watts, the Newtons and the Edisons make to thrive on? But of course the age of capitalism had not dawned fully then.
Dawn, 29th, July 2002