Nirav Bhatt is an LLM candidate at Osgoode Hall and is taking the Intellectual Property Theory course.
WIPO has been the forefront organization within the United Nations (UN) dedicated to develop a balanced and accessible international Intellectual Property (IP) system. Although it was established in 1967, its history stretches back to one hundred and thirty years, to the treaties of Paris and Berne. Today, the role of WIPO is uniquely influential in setting innovation policy worldwide.
Professor James Boyle in his article on “A manifesto on WIPO and the future of Intellectual Property” reflects his views on international IP policy and how the World Intellectual Property Organization (WIPO), as an organization, can help to make the indispensable changes required. Boyle argues that IP laws are “legal sinews” in this information age affecting everything from a price of a drug to patterns of international development, communications, internet etc. They are not an end in themselves, as the rules create more room for innovation and creativity and stresses that these rights should be set at the correct levels by interpreting the rules in a proportionate manner.
Boyle recalls that WIPO’s primary objective is to harmonize IP laws internationally but from the eyes of United Nations Organization (UN) it is even broader—to promote creative intellectual activity and facilitate the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development. This leads to the argument that fundamental changes need to be made in the role and attitude of the organization to serve its real goal. Boyle proposes possible approaches to achieve these goals.
The balance between the public domain and realm of property has been lost since IP rights have expanded exponentially. The contemporary attitude seems to be that the public domain should be eliminated and therefore IP policy is in the sway of a maximalist rights culture. Boyle suggests that maximalist agenda is not a good policy for even the developed world as it represents the interests of a narrow range of businesses and with very little democratic scrutiny. It would therefore be a tragedy for such a UN agency to adopt the narrow and biased maximalist rights culture.
The maximalist rights culture to me is one step forward and two steps backward as it tends to take away more from society which requires access to educational, cultural and social knowledge. It’s inclined more towards a rigid legal framework with very little space for maneuvering innovation. Having such a strong rights culture is detrimental in the long run, which was not the intention of the framers of the policy who decided the term of protection of the author or inventor and their work appearing in the public domain. Adopting a maximalist rights culture will leave some of the developing counties soaked to the skin and therefore the relationship of innovation and public domain should be symbiotic.
Although TRIPS and WIPO make claims for flexibility, the push has been to develop TRIPS plus reforms in developing countries through bilateral or regional agreements. These reforms have been an elephant in the room, as some of the developed nations have made special arrangements with their trading partners and so the “one size fits all” mantra for the International IP policy has been widely condemned in both developed and the developing nations.
Boyle goes on to explain that WIPO also presides over the harmonization of the laws to regulate citizen publishers of cyber space. Communications technology affords the capacity of duplicating easily, and has created many piracy problems and unauthorized distribution. But the use of strong IPRs to prevent these activities presents another risk – it hampers the ability of the Internet to encourage and distribute innovations and culture worldwide. The Internet should be regarded as a true democratic form and IP rules need to embrace this fact. The current IP system does not adequately address certain pressing human problems. If pharmaceutical patented medicines wouldn’t be able to supply adequate medicines for the global poor, it is not a criticism of drug companies but of the belief that the patent system is the only way to produce innovation. Therefore WIPO should be more hospitable to proposals that attempt to reform, but it is tragic that it has taken more than a century for us to return to alternative approaches for encouraging innovation such as state sponsored prize systems.
Boyle views IP policy reforms through the lens of environmental policy. Just as sustainable development was the criterion from the environmental protection perspective, we need to have balance between right and the pubic domain in IP policy. This argument has implications far beyond WIPO. To abandon the tunnel vision of the maximalist rights culture, Boyle proposes seven principles: balance, proportionality, appropriate development, participation and transparency, openness to alternatives, embracing the net as a solution and neutrality. Boyle concludes that although the trade negotiations have become the preferred arena for expanding rights still further, these trends should be reversed for international, informed, and democratic debates. WIPO’s role in that debate is a central one and it should embrace that role, rather than seeking to jump onto the bandwagon of ever-expanding rights.
The criticism to Boyle’s manifesto is twofold. First, it does little to classify these rights from the standpoint of different developing nations. To use the words of Shamnad Basheer, the black and white categorization of developed and developing nations ignores technological heterogeneity between developing countries. Second, the manifesto should have touched upon the issues of hegemonic international IP policy and how can a neutral body (not one in which the members have a conflict of interest) arrive at a possible solution for framing international IP policies.
In a recent work, Jeremy DeBeer posits a rather more optimistic view in light of the General Assembly of WIPO unanimously adopting forty-five recommendations regarding IP and development in 2007. This is being viewed as an attempted paradigm shift for IP policies in the twenty-first century. Its key demand is to re-establish the public policy aspects of IP rights, emphasizing that the protection and enforcement of IP cannot be an end in itself. This shift alleviates some of Boyle’s concerns towards hegemonization in IP Policy making. Thus, WIPO’s development agenda rejects a one-size, (especially an extra-large size), model of global IP law.