Integrating
Intellectual Property Rights
and Development Policy
Report of the
Commission on Intellectual Property Rights
London
September 2002
Published by
Commission on Intellectual Property Rights
c/o DFID
1 Palace Street
London SW1E 5HE
Tel: 020 7023 0000
Fax: 020 7023 0016 (for the attention of Charles Clift)
Email: ipr@dfid.gov.uk
Website: http://www.iprcommission.org
September 2002
The full text of the report and the executive summary can be downloaded from the CIPR website: http://www.iprcommission.org
For a hard copy of the report or further information please contact the Commission Secretariat at the above address.
© Commission on Intellectual Property Rights 2002
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George E. Osborne Professor of Law, Stanford University, California, USA
Barrister specialising in Intellectual
Property Law, London, UK
Director, Masters Programme on Science and Technology Policy and Management, University of Buenos Aires, Argentina
Director General, Indian Council of Scientific and Industrial Research and Secretary to the Department of Scientific and Industrial Research, Delhi, India
Senior Director of Science Policy and Scientific Affairs (Europe) at Pfizer Inc., Sandwich, UK
Director of Nuffield Council on Bioethics, London, UK
Charles Clift – Head
Phil Thorpe – Policy Analyst
Tom Pengelly – Policy Analyst
Rob Fitter – Research Officer
Brian Penny – Office Manager
Carol Oliver – Personal Assistant
PREFACE
Clare Short, the Secretary of State for International Development, established the Commission on Intellectual Property Rights in May 2001. We are made up of members from a diversity of countries, backgrounds and perspectives. We have each brought very different viewpoints to the table. We incorporate voices from both developed and developing countries: from science, law, ethics and economics and from industry, government and academia.
I believe that it is a considerable achievement that there is so much that we have been able to agree on about our approach and our basic message. As our title implies, we consider that development objectives need to be integrated into the making of policy on intellectual property rights, both nationally and internationally, and our report sets out ways in which this could be put into practice.
Although appointed by the British Government, we have been given absolute freedom to set our own agenda, devise our own programme of work, and come to our own conclusions and recommendations. We have been given the opportunity and financial support to improve our understanding of the issues through commissioning studies, organising workshops and conferences, and visiting officials and affected groups throughout the world. We have been supported by a wonderfully capable Secretariat supplied by the DFID and the UK Patent Office, and we want to thank them especially.
We first met on 8-9 May 2001, and have held seven meetings since. All or some of us have visited Brazil, China, India, Kenya, and South Africa, and we have consulted with public sector officials, the private sector and NGOs in London, Brussels, Geneva, and Washington. We visited the Pfizer research facility in Sandwich. A list of the main institutions we have consulted appears at the end of the report. We have commissioned seventeen working papers and held eight workshops in London on various aspects of intellectual property. And we held a large conference in London on 21-22 February 2002 to ensure that we could hear questions and concerns from many perspectives. We regard these sessions as important parts of our work in their own right. They brought together a range of individuals with a view to facilitating dialogue and exploring the scope for moving some of the issues forward.
On behalf of all of us I want to thank all those people from all over the world, far too numerous to mention, who provided input to our discussions and who prepared working papers.
Our tasks were to consider:
· how national IPR regimes could best be designed to benefit developing countries within the context of international agreements, including TRIPS;
· how the international framework of rules and agreements might be improved and developed – for instance in the area of traditional knowledge – and the relationship between IPR rules and regimes covering access to genetic resources;
· the broader policy framework needed to complement intellectual property regimes including for instance controlling anti-competitive practices through competition policy and law.
We decided early on not just to attempt to suggest compromises among different
interest groups, but to be as evidence-based as possible. This has been challenging, for there is
often limited or inconclusive evidence, but our Secretariat, extensive
consultations, and the papers we commissioned, helped us in identifying the available
evidence, which we then carefully evaluated.
We also recognised early on the importance of distinguishing nations
(middle or low income) which have substantial scientific and technological
capability from those which do not. We attempted to learn about the real
impacts of intellectual property, both positive and negative, in each of these
groups of nations. We chose to
concentrate on the concerns of the poorest, both in low and middle income
nations.
We all concur in this report. Our aim
is practical and balanced solutions. In
some cases we have adopted suggestions made by others but the responsibility
for the conclusions is ours alone. We
hope that we have fulfilled our task and that the report will be a valuable
resource to all those engaged in the debate on how intellectual property rights
might better serve to promote development and reduce poverty.
Finally I want to thank Clare Short, and the UK Department for International Development, for their foresight in creating the Commission on Intellectual Property Rights. I have been honoured to chair it. It has been an extraordinary experience for me, and for all of us on the Commission. We received a challenging remit. We greatly enjoyed our task and the opportunity to learn from one another and, in particular, from the many who have contributed to our work.
Chairman
FOREWORD
There are few concerned with IP who will find
that this report makes entirely comfortable reading. No
greater compliment can be paid to Professor Barton and his team of
Commissioners. Nor can there be any
greater indication of the foresight and courage of Clare Short, the UK
Secretary of State for International Development, in creating the Commission
and setting its terms of reference in the first place.
Perhaps there is something about the era we
live in that has encouraged blind adherence to dogma. This has affected many walks of life. It certainly has affected
the whole area of intellectual property rights. On the one side, the developed world side, there exists a
powerful lobby of those who believe that all IPRs are good for business,
benefit the public at large and act as catalysts for technical progress. They
believe and argue that, if IPRs are good, more IPRs must be better. On the other side, the developing world
side, there exists a vociferous lobby of those who believe that IPRs are likely
to cripple the development of local industry and technology, will harm the
local population and benefit none but the developed world. They believe and argue that, if IPRs are
bad, the fewer the better. The process
of implementing TRIPS has not resulted in a shrinking of the gap that divides
these two sides, rather it has helped to reinforce the views already held. Those in favour of more IPRs and the
creation of a “level playing field” hail TRIPS as a useful tool with which to
achieve their objectives. On the other
hand those who believe that IPRs are bad for developing countries believe that
the economic playing field was uneven before TRIPS and that its introduction
has reinforced the inequality. So
firmly and sincerely held are these views that at times it has appeared that
neither side has been prepared to listen to the other. Persuasion is out, compulsion is in.
Whether IPRs are a good or bad thing, the
developed world has come to an accommodation with them over a long period. Even if their disadvantages sometimes
outweigh their advantages, by and large the developed world has the national
economic strength and established legal mechanisms to overcome the problems so
caused. Insofar as their benefits outweigh their disadvantages, the developed
world has the wealth and infrastructure to take advantage of the opportunities
provided. It is likely that neither of
these holds true for developing and least developed countries.
It is against that background that the
Secretary of State decided to set up the Commission and ask it to consider,
amongst other things, how national IPR rights could best be designed to benefit
developing countries. Inherent in that
remit was the acknowledgement that IPRs could be a tool which could help or
hinder more fragile economies. The
Commissioners themselves represent as impressive a cross-section of relevant
expertise as one could wish. They have
consulted widely. This report is the result.
It is most impressive.
Although the terms of reference have
required the Commission to pay particular regard to the interests of developing
countries, it has done this without ignoring the interests and arguments of
those from the other side. As it
states, higher IP standards should not be pressed on developing countries
without a serious and objective assessment of their development impact. The Commission has gone a long way to
providing such an assessment. This has produced a report which contains
sensible proposals designed to meet most of the reasonable requirements of both
sides.
However, the production of a series of
workable proposals is not enough by itself. What is needed is an acceptance and
will to implement them. Once again, in
this respect the Commission is playing a major role. This is not the report of a pressure group. The Commission was
set up to offer as impartial advice as possible. Its provenance and makeup should encourage all those to whom it
is directed to take its recommendations seriously.
For too long IPRs have been
regarded as food for the rich countries and poison for poor countries. I hope that this report demonstrates that
it is not as simple as that. Poor countries may find them useful provided
they are accommodated to suit local palates. The Commission suggests that the appropriate
diet for each developing country needs to be decided on the basis of what is
best for its development, and that the international community and governments
in all countries should take decisions with that in mind. I very much hope this report will stimulate
them to do so.
UK
High Court Patents Judge
OVERVIEW
1
INTRODUCTION 1
BACKGROUND 2
OUR TASK 6
Chapter
1: INTELLECTUAL PROPERTY AND DEVELOPMENT 13
INTRODUCTION 13
THE
RATIONALE FOR IP PROTECTION 15
Introduction
Patents
Copyright
HISTORY 20
THE
EVIDENCE ABOUT IP 23
The
Context
Redistributive Impact
Growth
and Innovation
Trade
and Investment
TECHNOLOGY
TRANSFER 28
Chapter
2: HEALTH 34
INTRODUCTION 34
The
Issue
Background
RESEARCH
AND DEVELOPMENT 37
Research
Incentives
ACCESS
TO MEDICINES FOR POOR PEOPLE 40
Prevalence
of Patenting
Patents
and Prices
Other
Factors Affecting Access
POLICY
IMPLICATIONS 46
National
Policy Options
Compulsory
Licensing for Countries with Insufficient Manufacturing Capacity
Developing
Country Legislation
Doha
Extension for Least Developed Countries
Chapter
3: AGRICULTURE AND GENETIC RESOURCES 65
INTRODUCTION 65
Background
Intellectual
Property Rights in Agriculture
PLANTS
AND INTELLECTUAL PROPERTY PROTECTION 67
Introduction
Research
and Development
The
Impact of Plant Variety Protection
The
Impact of Patents
Conclusion
ACCESS
TO PLANT GENETIC RESOURCES AND FARMERS’ RIGHTS 76
Introduction
Farmers’
Rights
The
Multilateral System
Chapter 4: TRADITIONAL KNOWLEDGE, ACCESS AND BENEFIT SHARING
AND GEOGRAPHICAL
INDICATIONS 82
INTRODUCTION 82
TRADITIONAL
KNOWLEDGE 83
Background
The
Nature of Traditional Knowledge and the Purpose of Protection