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Intellectual property rights and globalization: implications for developing countries

This paper reviews the implications of the agreement on Trade- Related Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO). It focuses on the national implemention of the TRIPS agreement, technological development, plant
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  _________________________________ Intellectual property rights and globalization:implications for developing countries ______________________________________________________________________________________ Calestous Juma Center for International Development at Harvard University, 79 John F. KennedyStreet, Cambridge, MA 02138 USATele: +1-617-496-0433 Fax: +1-617-496-8753 Calestous_Juma@Harvard.edu http://www.cid.harvard.edu/cidtech/home.htm Abstract: This paper reviews the implications of the agreement on Trade-Related Intellectual Property Rights (TRIPS) under the World TradeOrganization (WTO). It focuses on the national implemention of the TRIPSagreement, technological development, plant variety protection, geopgraphicalindications, and biological diversity and the associated indigenous knowledge.The paper argues that efforts to promote compliance with to the TRIPSagreement should be accompanied by measures that address public interestchallenges such as health, nutrition and environmental conservation indeveloping countries. It suggests that addressing these issues will require policyand institutional innovations in the developed and developing countries. Whilesome of the measures can be addressed through multilateral forums, many of them should be addressed through domestic laws and policies designed to fosterinnnovation and expand international trade. Keywords : intellectual property; international trade; globalization; patents;World Trade Organization; TRIPS; technology transfer; technologicalinnovation; plant breeders’ rights; sui generis  sytems; geographical indications;biological diversity; traditional knowledge. Reference  to this paper should be made as follows: Juma, C. (1999).  IntellectualProperty Rights and Globalization: Implications for Developing Countries .Science, Technology and Innovation Discussion Paper No. 4, Center forInternational Development, Harvard University, Cambridge, MA, USA. Biographical notes:  Calestous Juma is Director of the Science, Technology andInnovation Program at the Center for International Development at HarvardUniversity and a Research Fellow at the Belfer Center for Science andInternational Affairs, Kennedy School of Government, Harvard University. He isa former Executive Secretary of the United Nations Convention on BiologicalDiversity. _________________________________  2 1 Introduction The relationship between intellectual property protection and international trade has beenone of the most controversial issues in global negotiations in recent years. The debate haslargely about the implications of the agreement on the Trade-related Aspects of Intellectual Property Rights (TRIPS) under the World Trade Organization (WTO) forinternational trade in general, and for developing countries in particular.[1] Most of theviews expressed by developing countries on the TRIPS agreement arise from theirinterest in technological development.The agreement recognizes the role of technology in social and economic welfare and setsout its objectives in Article 7 as: “The protection and enforcement of intellectual propertyrights should contribute to the promotion of technological innovation and to the transferand dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, andto a balance of rights and obligations.” Many of the views expressed by developingcountries stem from their perception that the TRIPS agreement affects their ability to usetechnological knowledge to promote public interest goals such as health, nutrition andenvironmental conservation.This paper argues that efforts to promote compliance with to the TRIPS agreementshould be accompanied by measures that enhance the participation of the developingcountries in international trade. These measures include a broadening of the intellectualproperty regime to cover products and resources that are provided by these countries. Itnotes the importance of exploring ways by which public interest issues such as health,nutrition and environmental conservation could be addressed through scientific andtechnological cooperation in accordance with the provisions of the TRIPS agreement.The paper does not deal with the larger issue of the links between intellectual property,innovation and social welfare.[2] The implicit view in the paper is that intellectualproperty protection affects the inventive behavior of firms in varied ways   depending onfactors such as type of industry, corporate affiliations, firm size and intellectual propertystrategies.[3] Temporal dimensions also play a role. Strong intellectual propertyprotection may be necessary to stimulate research in a particular field but greater socialwelfare may be gained at a later time through open access to technical knowledge thatmay be effected by public policy intervention. Impacts on public sector research alsoneed to be considered on a case-by-case basis.[4] Other issues such as competitionpolicy are critical to the TRIPS agreement but are not discussed in this paper.[5]The paper is divided into three main sections. Section 2 provides an overview of therelationship between development and intellectual property rights. It notes that thedebates on TRIPS are part of broader questions regarding the role of technology indevelopment and cannot be treated purely as enforcement issues. The public interestprovisions of the TRIPS agreement should guide negotiations and provide opportunitiesfor multilateral as well as bilateral arrangements for technology cooperation. Section 3  3 deals specifically with the concerns expressed by developing countries. These concernsare related to the implementation of the agreement and the need to provide for flexibilityand innovation in property rights systems. The final section examines a number of international policy implications of the concerns expressed by developing countries. 2 Technological innovation and intellectual property rights The TRIPS agreement, which came into effect on 1 January 1995, was one of the mainachievements of the Uruguay Round of trade negotiations. The agreement represented animportant step in efforts to harmonize intellectual property rules and establishingminimum standards for national laws. Most of the key elements of the intellectualproperty systems of the United States, Europe and Japan were similar and could be easilyharmonized. These are the largest sources of inventions as shown in Table 1. Areas of divergence between these systems include first-to-invent system, scope of patentablesubject matter, treatment of plant and animals, geographical indications and the degree towhich moral values should influence the granting of intellectual property rights. Table 1: Patent applications to the Patent Cooperation Treaty, 1997 RegionCountryNumber patents filedPercentage of totalNorth AmericaUnited States22,73641.8Canada1,0752.0 Total North America23,81143.75 Western Europe/EUGermany7,43613.7United Kingdom3,9397.2France2,4964.6Sweden2,1884.0Netherlands1,7493.2Switzerland1,1012.0Finland8731.6Italy7971.5Denmark6421.2Austria3730.7Norway3670.7 Total Western Europe/EU22,82841.95 East Asia and ChinaJapan4,8458.9South Korea3040.6China1570.3 Total East Asia and China5,3069.75 Eastern EuropeRussia4190.8 Total Eastern Europe7321.35 AustralasiaAustralia8811.6New Zealand1660.3 Total Australasia1,0471.92 All other regions6981.28 Total number of applications54,422100.0  4 Source: Dutfield, G. Forthcoming.  Intellectual Property Rights, Trade and Biodiversity: The Caseof Seeds and Plant Varieties . IUCN, Gland and Earthscan, London. Concerns over the impact of intellectual property rights are not limited to developingcountries.   The Parliamentary Assembly of the Council of Europe, for example, hasrecommended adoption of guidelines on patents legislation which “should help todevelop criteria for granting patents continuously according to technological progress infavour of both the interests of the claiming party, as well as the interests of the public inregard to public order, morality and general aspects of state economy.”[6] In addition toreservations about patenting living organisms, the Assembly also extended its concerns todeveloping country interests by recommending that “the many outstanding questionsregarding the patentability and the scope of protection of patents on living organisms inthe agrofood sector must be solved swiftly taking into account all interests concerned, notleast those of farmers and developing countries.”[7, 8]Differences in disclosure practices between the US, Europe and Japan are also beingdiscussed. Under European and Japanese systems, patent applications are publiclydisclosed after 18 months from the filing date irrespective of whether a patent has beengranted or not. In contrast, the US system publicly discloses patent information onlywhen a patent is granted. The US Congress has adopted legislation that would bring theUS patent system in line with its European and Japanese counterparts. Critics of thesechanges (who include a group of Nobel laureates) have charged that these changes willwork against the interests of individual inventors who play an important role in theeconomy. But other studies have concluded that “public disclosure leads to fewer patentapplications and fewer innovations, but for a given number of innovations, it raises theprobability that new technologies will reach the product market and thereby enhancesconsumers’ surplus and possibly total welfare as well.”[9]But for developing countries the concerns go beyond harmonization and are largely aboutaccess to technology.[10] Nations that generate technology have always sought to protectit while those that import it have pursued avenues that maximize access to the availabletechnology.[11] Nations seeking to develop technologically have often imitated andlearned from those already possing the knowledge. For example, when “the United Stateswas still a relatively young and developing country . . . it refused to respect internationalintellectual property rights on the grounds that it was freely entitled to foreign works tofurther its social and economic development.”[12] The history of intellectual propertyprotection in pharmaceutical products demonstrates this point. Many of the industrializedcountries introduced   patent legislation in this field after they had reached a certain levelof technological competence and international competitiveness.[13]More recently, technological learning has provided the policy basis for rapidindustrialization among developing countries.[14] These countries have favored policiesand laws that promote the local working of patents, parallel imports, compulsorylicensing and exclusion from patentability for certain classes of technologies. Much of the debate over the loosening of intellectual property protection in the World IntellectualProperty Organization (WIPO) and the United Nations Conference on Trade andDevelopment (UNCTAD) in the 1970s focused on these issues.  5 For example, the Berne Convention for the Protection of Literary and Artistic Works wassubstantially revised   in 1971 to include an annex on “Special Provisions RegardingDeveloping Countries”. The annex allows a country to “grant non-exclusive, non-transferable licences to its nationals for the reproduction or translation of foreign-ownedcopyright works for educational or research purposes.” These revisions were justified onthe basis of national public interest. Similar revisions were attempted in other intellectualproperty regimes but were stalled by the onset of the Uruguay Round of negotiations. It isnotable that there have been no major efforts by developing countries to invoke thespecial provisions of the Berne Convention to grant copyright works to their nationals.This is mainly because of the difficulties associated with the use of compulsory licensingas a development policy instrument (as discussed in section 4 below).The need to balance between enforcement of intellectual property rights and meeting thetechnological needs of developing countries became a key theme in the Uruguay Roundnegotiations. The TRIPS agreement reflects this point. In Article 8 TRIPS states thatcountries “may, in formulating or amending their laws and regulations, adopt measuresnecessary to protect public health and nutrition, and to promote the public interest insectors of vital importance to their socio-economic and technological development,provided that such measures are consistent with the provisions of this Agreement.” Theagreement (in Article 8.2) provides countries with freedom to adopt measures that “maybe needed to prevent the abuse of intellectual property rights by right holders or the resortto practices which unreasonably restrain trade or adversely affect the internationaltransfer of technology.” This prevention of abuse clause deals primarily with measuresthat undermine competition.[15]But the existence of such flexibility suggests that developing countries will need toformulate their interests through national policy and legislation. The successful use of theflexibility granted in the TRIPS agreement will also depend on the relationship between acountry and its major trading partners in the industrialized world. This is because most of the inventions that are likely to be affected by national laws belong to rights holders inthe industrialized world. 3 Emerging development issues Nearly five years have passed since the TRIPS agreement came into force. Over thisperiod developing countries have had a chance to assess its implications for theirdevelopment strategies. It should be noted that the last years of the Uruguay Roundcoincided with the preparations for the United Nations Conference on Environment andDevelopment (UNCED) held in Rio de Janeiro in 1992. As a result, many of constituencies interested in the TRIPS agreement did not adequately follow the process.It was only recently that research on WTO has helped to clarify some of the emergingissues. A number of rulings in the WTO process have also helped to raise awareness onthe implications of the agreement for development. The emeging issues include: nationalimplementation of the TRIPS agreement; technological development; plant variety
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