Regional Seminar on the implementation of the WIPO

development agenda

Summary of remarks
by Professor Jeremy de Beer

I. Implementation challenges and opportunities

The development agenda is the most important issue to face the
international IP community since TRIPs, and perhaps ranks among the
most significant potential turning points ever in global IP policy. The
litmus test for success, however, is effective implementation of its
recommendations. This is the subject of my recent edited collection of
essays in the book, Implementing the WIPO’s Development Agenda.
Among the greatest challenges to implementing the
development agenda will be better defining what the agenda is, its
status and effect and its practical consequences. 20th century IP
policymaking has been criticized as pursuing an agenda of
“underdevelopment,” protecting knowledge and skills of the leaders of
the pack. The development agenda is a response to the upward
harmonization of minimum standards of protection, rejecting universal
norms and reemphasizing the public interest in appropriately
calibrated IP systems. It can be defined according to four
characteristics: malleability, complexity, opportunity and gravity.
Constructive ambiguities make the agenda malleable, and
adaptable to suit the various needs of different constituencies and
contexts. This renders its technical legal effect unclear, and risks
interpretation that validates the status quo. The agenda is complex
because it implicates many institutions and organizations, it
oversimplifies the classification of heterogeneous stakeholders into
traditional groups and it fails to acknowledge intra-group and intra-
national conflicts. The current opportunity for an IP paradigm shift is
not unprecedented, but current conditions justify greater optimism
than in the past. There is greater public scrutiny of global IP policy
attributable to civil society engagement, more interrogatory research
and empirical evidence of the impact of IP on society, and greater
critical awareness of IP externalities among developing country
representatives. The consequences of failing to successfully implement
the development agenda would be grave, threatening to undermine
WIPO’s status as the most appropriate forum in which to discuss IP and
development.
The agenda will be further defined through the concrete steps
taken to implement its recommendations.

II. IP and development in other forums

Implementing the development agenda is not simply a task for
WIPO and other international organizations. It is a shared responsibility
among all IP stakeholders, including civil society and the media, inter-
governmental organizations and think tanks, academics and research
funding agencies and private sector industry groups.
Non-governmental organizations were instrumental in supporting
the conception, proposal and adoption of the development agenda.
They played a crucial role informing and assisting developing country
officials, and enhancing transparency by publicly reporting on and
scrutinizing discussions. Intergovernmental organizations and think
tanks provided relatively deeper conceptual analysis of the principles
and policies underlying the agenda, and should continue to serve this
function going forward. Academics, some of whom are supported by
research funding agencies, have begun developing a rich scholarly
literature on the topic of IP and development, which helps to entrench
the agenda as a priority topic and encourage new thinking about
implementation strategies. The private sector was a key influence in
promulgating 20th century IP norms and treaties. Businesses adopting
new models to acquire strategic advantage, through innovative
exploitation of IP systems as tools for collaboration rather than
exclusion, must play a similar role in reshaping the IP rules for the 21st
century.
WIPO and its member states cannot implement the development
agenda alone. Actors in all of these forums have an important role in
making progress.

III. IP and competition policy

Questions about the interfaces among IP policies and
competition policies are not new. Increasing awareness of the
potentially adverse externalities of strong IP protection, however, has
triggered concerns about the anti-competitive potential of IP. There is
generally a lack of basic understanding of how IP and competition
polices are contradictory and/or complementary. Both IP and
competition policies share the common objective of increasing
consumer choice and reducing prices. But they use contradictory
means to achieve this goal.
Intangible resources can be easily copied for near-zero cost.
Because the marginal cost of production is also near-zero, in the
absence of IP protection, prices for intangible resources will tend to
zero. The long-term result is dynamic inefficiency, because there will
be a lack of incentives to invest time, money and effort into the
production of cultural products, scientific research and other valuable
intangibles. IP rights provide temporary, exclusive legal rights in order
to restrain competition, and thereby encourage such investments. IP
rights raise prices above what they otherwise would be in a
competitive market, which is usually justified as a necessary
externality.
 Competition policy generally puts tries to encourage, not
restrain, competition. Regulatory tools can deal with market
monopolies and/or agreements that restrain trade. Monopolies per se
are neither illegal nor undesirable. It is instead the means by which
market power is acquired and abused that may be problematic. IP is
sometimes characterized as a monopoly right, but this is only accurate
in reference to the particular product protected, such as a specific
copyrighted work or patented invention. To the extent that there exist
market substitutes for particular products, an IP right is not technically
a monopoly in the ordinary meaning of the term. Trade can be
restrained by horizontal or vertical agreements. Horizontal agreements
are most problematic where would-be competitors collude to raise
prices. Tied selling can also characterized as anti-competitive.
Within the field of IP, practices that might trigger competition
policy concerns include collective licensing of copyrights to raise
prices, patent pooling to limit competition, and using technological
protection measures to engage in tied selling or other anti-competitive
behaviour. The doctrines of IP misuse and/or compulsory licensing can
be used to address such concerns.
Although IP policies and competition policies are designed to
achieve the same objective (albeit through different means), they are
not interchangeable substitutes for one another. Importantly, strong IP
rights should be coupled with strong competition rules to maintain
competitive equilibrium.

IV. Closing Roundtable on Moving Forward

The global IP paradigm is shifting. In the 15 years since the TRIPs
Agreement, one of WIPO’s main achievements has been to build IP
awareness and capacity in developing countries. The focus of its efforts
was on trade and economic growth, and the role of IP in facilitating
those goals. Meanwhile, however, there has been a shift in thinking
about the concept of development, away from an emphasis on
economic growth alone and toward a holistic understanding of the
human freedoms that economic growth facilitates.
The essence of the development agenda is a reflection of this
more robust understanding of development, and a consequent
reinvigorating of the broad public policy implications of IP. The
development agenda is not intended to detract from the merits of an
appropriately designed IP system, nor necessarily a call for reduced
standards of protection. Instead, it essentially recognizes the IP
system’s impact on other issues relevant to human flourishing. These
include population health, food security, education systems, the
environment, cultural participation, information communications, and
more.
One of the next steps in implementation of the development
agenda is expanding this emerging, nuanced understanding of the
varied roles that IP plays in society and public policy making. This
cannot be achieved by WIPO or its member states, either acting alone
or in collaboration with other international institutions. Understanding
the essential principles of the development agenda must spread to the
national level, through national IP offices working together with health,
agriculture, environment, education, culture, communications and
other agencies implicated by IP policy, and eventually to individual
citizens of both developing and developed countries. The ultimate
result can be a more human-centred system of IP policy.