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4-Patents: The case for a new intellectual property order

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TITLE:  The case for a new intellectual property order
SOURCE: SciDev.Net, by David Dickson
DATE:   May 12, 2003

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The case for a new intellectual property order

Pressure is growing for a rethink of the principles on which
international rules on intellectual property are based. The goal must be
a genuine level playing field, not one skewed in practice towards the
interests of the rich.

If there is a single issue that captures the moral and social ambiguities
of globalisation, it must surely be intellectual property rights (IPR).
Few would dispute that intellectual property regimes can, in principle,
promote a win-win situation, in which everyone benefits from the
technical ingenuity of a few. At the same time, however, critics of the
way that IPR regimes operate in practice are correct to point out that,
at present, there is an unacceptable imbalance between those who benefit
from stricter IPR regimes (primarily in the developed world) and those
who suffer their consequences.

Fortunately, there are signs that a wind of change is blowing through
this debate. Take, for example, the British government's response last
week to the report published in September 2002 by an international
Commission on IPR, which the government had itself set up two years
before. In endorsing the Commission's main conclusion - namely that
developing countries should be encouraged to go much further in designing
IPR regimes that fit their individual circumstances, and not be pressured
into adopting tougher regimes than they need - the United Kingdom has
taken a stand that should inspire other countries to follow suit in
raising fundamental questions about just who benefits from the current system.

Disappointingly, however, the government has not backed demands for a
more radical overhaul of the international patent system. This reluctance
is, perhaps, understandable, given that the United Kingdom is one of the
main beneficiaries of the current system, which applies to the products
of its pharmaceutical and biotechnology industries. In both of these
fields, Britain is seeking to carve out a niche role in the global
economy of the 21st century. Under these circumstances, the United
Kingdom - like most developed countries - clearly stands to gain more
than it does to lose by sticking to the current system.

But hiding behind self-interest is no longer acceptable. Nor is it
restricted to issues such as the relatively high price of patented
pharmaceuticals. The inequity embedded in the current patent system has
even been recognised by mainstream publications such as The Economist,
which recently commented that "there is little evidence to show that
truly downtrodden places which introduced robust intellectual-property
protection reap any of the much touted benefits." Governments must go
further than merely pointing out the range of options under existing
international agreements. Strong moral leadership is now required to
create a level playing field in a social - and not just economic - sense
between the rich and poor nations of the world.

An international treaty?

One such step has already been proposed. This would be an international
treaty committing all signatory countries to refrain from imposing
tougher restrictions on access to research findings by foreign scientists
than are placed on its own scientists. Put forward by Stanford law
professor John Barton - the chair of the IPR Commission - the proposal
draws directly on a parallel with free trade issues. It argues that, just
as countries have concluded that a common commitment to free trade has
produced a more robust and vibrant international economy than one based
on trade protection, so a similar commitment should exist towards
reducing protectionist restrictions on the results of scientific research.

Barton's specific proposal is that an international commitment to
minimise the latter - or at least, to ensure that legitimate restrictions
are applied internationally, and not solely to benefit the scientific
community of one particular country - should be enshrined in a new
treaty. The approach has several clear attractions. In particular, it
would impose binding commitments on all signatories to reduce barriers to
accessing scientific information (which might include the restrictions
through patents), and also allow sanctions against those who ignored
their commitments.

But there are also significant difficulties in such an approach. One is
the challenge of drafting a legally binding text defining when a specific
measure to protect scientific knowledge - or intellectual property - is
legitimate (in the interests of innovation) or illegitimate (in terms of
being excessively protectionist). A second is the enormous task of
generating a political consensus on measures that would inevitably be
opposed by powerful sectors of industry that benefit from the current
regime, and argue that there is little need for change. Particularly when
government policies, most notably the Bayh-Dole Act in the United States,
point in precisely the opposite direction, namely a desire to promote
national economic strength in the face of international economic competition.

An alternative campaign

More realistic, perhaps, is a dispersed campaign that seeks to achieve
change not through developing a single, legally enshrined consensus, but
by pushing for significant reforms in the many different arenas in which
IPR issues currently surface. Parallels with guerrilla warfare come to
mind, the idea being to identify both the weaknesses in the current
system, and those areas where change is likely to be achieved most rapidly.

The first of these tasks is already becoming easier, as a growing range
of organisations add their weight to criticism of the current system.
Take, for example, support for campaigns based on the concept of 'benefit
sharing' - the idea that native communities should have the right to
share in any benefits obtained from intellectual property rights claimed
by others on their indigenous knowledge. This can be illustrated by the
South African government's recent agreement to provide the San community
with a share of any profits derived from a potential weight-reducing
substance extracted from a local plant (see Indigenous group to share
royalties on anti-obesity drug).

Criticism of the current system is coming both from groups known to
champion the causes of the developing world, and those less often
associated with this area. Last month, for example, Britain's Royal
Society issued a report in which it backed calls for greater openness and
data sharing among the academic community (see Report deplores growth in
academic patenting ). And at a recent seminar organised by Médecins sans
Frontières on how to push neglected diseases up the research agenda, the
need to adjust the current IPR system was never far from speakers' lips.
As Sir John Sulston of the UK's Sanger Centre put it, those who maintain
that patents are the only way to motivate drug development are "trying to
defend the indefensible".

The more that governments give their support to piecemeal efforts at
change, the more successful such efforts are likely to be in bringing
about an overall shift in the landscape. What is needed, perhaps, is no
less than a "new international intellectual property order", along the
lines of the "new international economic order" that proved to be such a
potent rallying cry in the 1970s and 1980s. A global commitment to that,
whether or not its principles are enshrined in a single treaty, is a goal
worth fighting for.