The Implementation Game: Developing Countries, the TRIPS Agreement and the Global Politics of Intellectual Property

5 December 2007

Dr. Carolyn Deere – Director, Global Trade Governance Project, Global Economic Governance Programme, University of Oxford

The TRIPS Agreement triggered an intense global debate on the relationship between intellectual property (IP) regulation and development. As TRIPS is implemented through measures at the national level, an analysis of the implementation imposes itself to understand the impact of the agreement on development countries.

Dr. Deere reviewed the evidence on TRIPS implementation, noting a variation in the use of the “flexibilities” mechanism by developing countries. She found that some LDCs were not taking advantage of the flexibilities and in some cases, very poor countries were even going beyond the IP rules of the TRIPS. In order to find an explanation for this puzzling finding, she looked at the process of TRIPS implementation as a competitive game with actors such as industry, NGOs, governments, IOs, each following their particular agenda.

The presentation put forward two explanations:

1) The first, linked to the understanding and global politics of the IP rules implementation, sees the TRIPS implementation shaped by the dynamics of debates on the TRIPS and international IP negotiations. The TRIPS provisions being very contested and sometimes said not to belong into the WTO framework (Bhagwati, Stiglitz), States from both the North and the South pushed to change the deal: for the North, IP protection standards were to be raised further, while the South wanted to lower them. As IP rules affect areas as diverse as consumers’ rights, public health, education or open-source software, public debate gained momentum.

2) The second explanation focuses on the interplay between international debates, external power pressures and the national process of IP-decision-making. Dr. Deere identified and explained sources of external pressure the strategies that these actors employed and the kinds of power they exerted.

Two currents of pressure distinguished themselves:

1. one argued for a rapid and swift compliance with the core TRIPS rules everywhere, encouraging countries to go beyond TRIPS (TRIPS Plus). Media campaigns and attempts to shape the ideas of developing countries’ delegates on the meaning and the advantages of the TRIPS were the most current means of pressure. Within the WTO and the WIPO, a “culture of rapid compliance” with the TRIPS was mainstreamed. Meanwhile, as most capacity building assistance was offered by WIPO and developed countries, this was characterised by the promotion of reforms to comply with stricter standards, sometimes even discouraging the use of TRIPS flexibilities.
2. the other current, represented by NGOs, IGOs, UN Agencies, academics and developing countries, argued for the use of flexibilities. They also resorted to means like media campaigns to raise the awareness about the advantages of the flexibilities mechanism. Also, a sort of “research war” started between the two currents as the result of retaliatory reports on both sides.

Finally, Dr. Deere shifs the focus out of global politics towards the national level and elaborates on domestic factors in developing countries, which either limited or amplified the actual influence of external pressures, thereby contributing to the variation in the TRIPS implementation.

1. the bureaucratic capacities of developing countries with respect to IP implementation: the weaker these are, the more susceptible the country will be to absorb whatever ideal drives the technical assistance they receive (consider the actors providing TA: WIPO and developed countries). Further, IP Officers are usually more technocrats than public policy specialists, thereby influencing the decision making of a developing country without taking into account its public policy needs, especially in countries where the IP Office is relatively independent and where its decisions do not enter into a public debate mechanism.
2. The coordination between the capitals and their missions to the WIPO and WTO: as it is the IP officers negotiating and not the trade officers, it is all the more important to ensure proper coordination between the mission and the capital.
3. Public engagement: if the industry and elements of the civil society speak up either against or in favour of the use of flexibilities, in many parliaments, there is a lack of knowledge and interest in these issues. There is also no debate among local interest groups (there are, however, interest groups pushed by branches of international interest groups, like a Novartis local affiliation or a MSF or OXFAM local affiliation).

The conclusion draws out some lessons learnt from these findings that could advance a development agenda with regard to domestic IP reforms and the implementation of international IP agreements by developing countries.

Comments:

Mr. Boumedie Mahi, Permanent Mission of Algeria, following WIPO activities:

-He points out that only recently, WIPO secretariate started delivering TA regarding flexibilities to developing countries. Now, DCs have gained freedom to express themselves in favour of the use of flexibilities.

-the Development Agenda of WIPO has been one response to the issue of discussion. The aim is to have a balanced protection: to encourage innovators AND take into account development and access to items by the public. Then, he noted that capacity building for this objective was needed: the developed countries’ view of TA was biased towards helping implementing TRIPS. The Agenda emphasises the need to consider the balance, including the developmental dimension.

Mr. Christoph Spennemann, Legal expert, Intellectual Property Team, Policy Implementation Section, UNCTAD, Geneva:

He basically agrees with the presentation’s content. However, he pointed out one question:

Is there really a gap between the discourse of developing countries and the domestic implementation of the TRIPS?

-Observing, as Dr. Deere did, that there is a high level of IP protection in LDCs, while more flexibilities are used in DCs, Mr Spennemann sees the decisive criteria in that TRIPS flexibilities are difficult to implement. His example drawn from patent law: if not even developed countries are clear on the definition of “inventive step”, how should developing countries approach such issues.

-this domestic capacity to implement differs from country to country. He notes that a group of countries, that he chooses to call Group3 countries, has the highest IP standards but a very low technical capacity in IP. Advanced developing countries with higher technical capacity make, on the other hand, considerable use of flexibilities. These countries, like Brazil, India, Argentina or China, he notes, were also the ones that actively participated already in the Uruguay Round and are now aware of the implications of flexibilities.

In other words, Group3 members know about IP benefits but lack awareness on the IP impact on their public domain and the consequences on innovation. The widespread belief is that in IP protection linked to foreign investment but they ignore the importance of flexibilities to attract foreign generic producers of pharmaceuticals, for example. The result is that pre-TRIPS laws prevail due to the lack of capacity.

This very group does not participate in the debate between the two currents of pressure and in the insights regarding the use of flexibilities. This lack makes them open for any suggestion, which will usually come by in a race of the TA providers to win the game.

He concludes that domestic capacity to UNDERSTAND the implications of flexibilities is KEY. IP-related capacity building that takes account of development objectives is needed.

Mr. Ahmed Abdel Latif, Programme Manager for Intellectual Property, ICTSD, Geneva

He raises the question of legitimacy from the Southern point of view: for the South, he claims, it is important to know who is putting forward what idea and what suggestion. He proposes to incorporate this element into the game analysis of the presentation.

Noelia Díaz