The United Nations Conference on Trade and Development has called for reforms to the global intellectual property system in its Least Developed Countries Report 2007.

Subtitled "Knowledge, technological learning and innovation for development", the report says that the current system favours the holders of intellectual property - usually the industrialised countries - over users or potential users of IP, such as the least developed countries or LDCs.

"After two decades of steadily increasing IP protection there are growing concerns about how far that process has gone. Increasingly, developing countries, including the LDCs, are concerned that the development dimension is not sufficiently integrated into global IP policymaking," the report says.

Much of the chapter dealing with intellectual property focuses on the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was also hotly debated at the European Patent Forum in April and in the course of the EPO's Scenarios for the future project. The agreement requires countries to adopt minimum norms for the protection of IP rights as well as rules for their enforcement.

The report says that is unrealistic to expect that the world's poorest countries will achieve "a sound and viable technological base" by 2013, the deadline for meeting the standards laid out in the agreement.

And although the TRIPS agreement allowed developing countries some degree of flexibility, the report argues that "more stringent IP requirements have been negotiated in regional and bilateral agreements. The inclusion of these so-called TRIPS-plus clauses may limit the use of the flexibilities negotiated at the multilateral level, especially the mushrooming of Free Trade Agreements."

The report, which was published by the Geneva-based body last month, echoes concerns expressed in a series of interviews conducted by some interviewees for the EPO's Scenarios for the Future project, which looked at how IP could develop over the next twenty years.

Sisule Musungu, from the Programme on Innovation, Access to Knowledge and Intellectual Property at the South Centre in Geneva, told the EPO: "[TRIPS-plus] agreements are being seen from an industry standpoint, as addressing the weaknesses of TRIPS. What could not be obtained through TRIPS is being sought here. This is the battleground of the future."

Martin Kohr, director of the Third World Network, argued that the TRIPS Agreement should not have been negotiated within the framework of the WTO.

"This has led to many controversies and problems," he said. "There is a growing opinion, even among the economists who believe in free trade, that it might not have been a good idea to locate TRIPS inside the WTO. It could have been negotiated in WIPO (the World Intellectual Property Organization)."

Yet others defended the agreement, with Professor Joseph Straus, from the Max Planck Institute for Intellectual Property, describing it as "the first time in history that internationally binding minimum standards on substantive issues were introduced in the field of patents."

"TRIPS combined trade and intellectual property in an international context and considerably harmonised laws and procedures. This was a real revolution, and contrary to the assessment of many, I think it has been of benefit to most developing countries," he said. "They may not like high standards of IP protections, but must understand that there cannot be a globalised economy with open markets without mandatory standards for intellectual property protection."

Michael Kirk, Executive Director of the American Intellectual Property Law Association, said that there is still work to be done on the agreement. "The rules are not as crisp as we would have liked, and it is still difficult to enforce them in many jurisdictions," he said. "Thus TRIPS is a work in progress, and there are still significant changes that will come globally to all forms of intellectual property."

In its report, UNCTAD recommends that the transitional periods for LDCs to comply with the TRIPS agreement should be extended until they have reached a "sound and viable technological base". It calls for IPR regimes that allow LDCs to produce and market internationally competitive products and says norms must be fine-tuned to establish a balance between IP protection and economic development. The report also encourages LDCs to look beyond the classic IPR tools to promote innovation and says they should make use of the TRIPS flexibilities.

Secretary General Ban Ki-moon is quoted as saying: "The rules of intellectual property rights need to be reformed, so as to strengthen technological progress and to ensure that the poor have better access to new technologies and products."

According to World Bank statistics, the number of global patents originating in the 50 countries identified by the UN as LDCs, has dropped from an average of 66 per year in the early 1990s to just 10 per year between 2000 and 2004.

"Knowledge is becoming more and more important in the global sphere of competition and productions. In this context, there is a danger that LDCs will be increasingly marginalised if they do not enhance the knowledge content of their economies and achieve economic diversification through learning and innovation," the UNCTAD website writes.

Established in 1964 and based in Geneva, Switzerland, UNCTAD promotes the integration of developing countries in the world economy. 

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2013-07-17