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.

© SciDev.Net 2003