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  • The US and Europe are 'intellectual property fundamentalists'

The Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) requires all member states of the World Trade Organization to establish minimum standards of legal protection and enforcement for a range of intellectual property rights, including trademarks, industrial designs and drug patents.

In some circumstances developing countries can override international rules. For example, during a public health crisis a country might be allowed to cheaply produce or import generic versions of patented drugs or vaccines. But the freedom of developing countries to exploit the flexibilities of international intellectual property rules is diminishing rapidly. Especially important are those flexibilities relating to exceptions to protection and to circumstances justifying limitations to rights such as public health emergencies. Both the United States and the European Union have developed successful strategies to hold developing countries to more rigid and higher standards of intellectual property protection than international rules — especially those in the TRIPS Agreement — require.

One of the most effective tactics being used is that of so-called free trade agreements containing highly constraining and protectionist 'TRIPS plus' intellectual property provisions that serve primarily the interests of transnational corporations. Free trade agreements are not entirely free, since the intellectual property provisions in them are inherently protectionist, nor are they fair to the weaker negotiating parties. But they are popular with the US government and the European Commission because the US and European economies are, along with Japan, the major producers and exporters of goods and services protected by patent, copyright and trade mark, and therefore have much to gain from such agreements.

Increasingly, the promoters of TRIPS plus rules are using rhetoric that I call 'intellectual property fundamentalism'. In its most extreme form, the rhetoric assumes that developed world intellectual property rules are the only way to achieve development, claims that all copying is stealing, and even likens intellectual piracy to terrorism.

This aggressive stance on intellectual property by the Americans and Europeans is both dishonest and potentially dangerous. Important as effective intellectual property protection is, neither the US nor the EU would countenance the elimination of well-established limitations to rights that allow copying of patent- and copyright-protected goods and works under certain conditions.

And yet, some developing countries have been pressured to adopt standards that are even stronger than those in some developed countries. One example is the extension of the copyright term for literary and artistic works to the life of the author plus 70 years as in the US and Europe without also adopting the 'fair use' doctrine that is integral to US copyright law and that makes the whole system more balanced.

Does this matter? Yes, although we cannot be certain how much. But there is ample historical evidence to show that the freedom to imitate and to have relatively unfettered access to goods, technologies and information from more advanced countries have been essential for learning how to innovate. [1] South Korea copied from Japan and the West, Japan imitated the United States and Europe, the United States in turn copied from the European countries, who copied from each other and – something they rarely acknowledge – from the Middle and Far East. Frequently, the lack or even total absence of intellectual property protection helped considerably. So by depriving developing countries of the freedom to design their own systems of protecting intellectual property, the rich countries seem to be 'kicking away the ladder' [2] after they have scaled it themselves.

Let us consider a few examples to show what would, or rather what would not, have happened if, historically, all copying had been treated as stealing.

Royal Philips Electronics was set up in 1891 to commercially exploit other people's inventions, such as the carbon filament lamp created by Thomas Edison and Joseph Swan. Commercial success generated considerable revenue that enabled the firm to produce its own inventions and eventually become one of the world’s most innovative corporations. How was Philips able to get such a good head start? From 1869 until 1912, the Netherlands had no patent law.

Swedish phone company Ericsson was formed in 1876, the same year as Alexander Graham Bell made his first phone call. After being sent some of these new-fangled devices to repair, the company worked out how to make them, and by 1878 was selling its own phones to the Swedish public. Bell had neglected to file patents on his invention in Sweden. Copying unpatented technologies has of course always been legal, yet the fact remains that Ericsson only got started by copying somebody else’s invention.

In 1960, Texas Instruments filed a patent in Japan for the integrated circuit, arguably one of the most important inventions of the second half of the 20th century. The Japan Patent Office allowed itself 29 years to grant the patent. By that time, Japanese companies, free to read the details of the patent 18 months after it was filed, acquired the technology, improved it, and controlled 80 per cent of the US market for computer semiconductors. [3]
Such behaviour broke no international rules. Freedom to freely use technologies often benefited not only the imitator companies but also the national economies in which they were based. Significantly, none of the recipient countries remained copiers for long; eventually they became among the world’s most technologically advanced nations.

To argue that imitation is an essential stage in learning to innovate and — that it can even be creative in itself — is stating the obvious. Admittedly, anybody with the right equipment can copy a music CD and will learn very little by doing it. But copying a new medicine, especially a complex protein-based drug, is another story entirely. Indeed, as we saw, some of the world’s most advanced companies learned to be creative after copying other people’s inventions first. The same may be true for Indian generic drug companies that are now filing patents in the United States and Europe.

Even Isaac Newton admitted that if he had seen further than others it was by standing on the shoulders of giants. The most creative people must free-ride on other people’s knowledge sometimes. Otherwise they would find it hard to develop their creativity. Needless to say, none of this should be taken to justify non-creative copying of films or music, or counterfeiting of trademarked goods.

History warns us that agreeing, whether freely or under duress, to restrict one’s freedom to tailor national or regional intellectual property regulations to specific needs and conditions in exchange for market access commitments from the developed countries could turn out to be extremely damaging. At worst, it could place a serious block, perhaps insurmountable, on science- and technology-based development. The very possibility of such an outcome should be taken very seriously, which is why the US and Europe should moderate their stances on intellectual property.

[1] Dutfield G. and Suthersanen U. Harmonisation or differentiation in intellectual property protection? The lessons of history. Quaker United Nations Office, Occasional Paper 15. Available at:

[2] Chang H-J. Kicking Away the Ladder: Development strategy in historical perspective (Anthem Press, London, 2002).

[3] Johnson C. Japan: Who governs? the rise of the developmental state (W.W. Norton & Co, New York and London, 1995, pp 74-5).

Read more about this topic in SciDev.Net's dossier on intellectual property rights
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