Learning to trip up

How international regulation affects development strategies

Intellectual property rights (IPRs) allow knowledge or information to be owned: the most common forms are patents (for industrial ideas), copyrights (for creative expression) and trademarks (for brands and company names). IPRs allow owners to treat ideas, knowledge and information as if they were physical property; they can sell them, rent them out or demand compensation for their loss.

Since 1995 IPRs have been subject to the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPs) which is overseen by the World Trade Organisation (WTO). Whilst the agreement does not determine national legislation, WTO members’ domestic law must support the rights it lays out. For developed countries this has meant some legislative reorientation, but for developing countries, often with little tradition of IPRs, compliance is more difficult and expensive to achieve. There is much more at stake for developing countries than legal restructuring. Recognising the rights of private IPR 'owners' in rich countries, aggravates inequalities in life and death issues like health care and food distribution, as well as undermining previously successful developmental strategies based on copying and adapting foreign technologies.

As the debates and protest over AIDS medicine have demonstrated, civil society is well aware of the potential impact TRIPs could have on these issues. However, current capacity building and 'awareness raising' programmes funded by the WTO and other agencies provide extensive training and legal resources (from model laws to training for judges) which present the TRIPs model as self-evidently beneficial. Of course these programmes could have clear benefits; enabling developing countries to take advantage of flexibilities within the agreement. In practice, however, training programmes also socialise lawyers and policy makers into a specific way of dealing with IPRs which reflects the trade interests of the private sector in rich countries, rather than the priorities of developing countries.

Further, in an attempt to ensure countries are not caught up in costly trade disputes with richer WTO members, advice has often encouraged the adoption of legislation that goes beyond the formal requirements of TRIPs. The resulting 'TRIPs-plus' IPR laws and procedures undermine the safeguards built into the agreement for developing countries.

The private rights of IPR 'owners' are being purchased at too great a social cost in the developing world. Either civil society must endeavour to make the WTO and the TRIPs agreement more accountable to the developing world; or IPR governance must take better account of uneven globalisation, by allowing poorer countries to develop non-TRIPs solutions to questions of technology transfer or the commercial utilisation of knowledge and informational resources. The recent agreement on compulsory licensing and importation of generic medicines is a first step in ameliorating these problems, but more is needed if IPRs are to work for the poor as well as the rich.

Christopher May
Faculty of Humanities
University of the West of England
Coldharbour Lane
Bristol
BS16 1QY
UK

christopher.may@uwe.ac.uk

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