Mind Sharing

Journal of World Intellectual Property, Vol. 7, No. 5, September 2004, Geneva

Most people value ideas — especially their own. Global intellectual property rules exist to protect people from the theft of these valuable commodities. Among such rules, one of the broadest and most expansive is the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, which essentially seeks to stamp out music and movie piracy, counterfeiting of branded goods, and unwelcome competition from producers of knockoff drugs. What could be wrong with that?

Plenty, according to environmental crusader Vandana Shiva. A vocal critic of TRIPS since its adoption at the 1994 Uruguay trade round that established the World Trade Organization (WTO), Shiva considers the agreement more a tool for plunder than protection. In her view, TRIPS blocks the transfer of much needed technologies to the developing world, preventing these nations from lifting themselves up by imitating first and innovating later.

One would hardly expect a balanced presentation of the issues from a professional activist, and Shiva, founder of the independent Research Foundation for Science, Technology and Ecology in India, does not disappoint. In her recent article for the Journal of World Intellectual Property, she berates the pharmaceutical industry for price gouging, biotechnology firms for free riding on public research, and multinational companies for stealing medicinal remedies and claiming ownership of indigenous peoples’ knowledge. "TRIPS is not the result of democratic negotiations between the larger public and the commercial interests, or between industrialized countries and the Third World," she writes. "It is the imposition of values and interests of Northern MNCs [multinational corporations] on the diverse societies and cultures of the world."

This argument has some merit. Imitation is not only the highest form of flattery; it’s also a sure-fire path to development. South Korea copied Japan and the West, Japan imitated the United States and Europe, and the United States, in turn, copied European countries — which poached ideas and innovations from each other, as well as the Middle East and Asia. It’s fair to ask whether poor countries will ever catch up if they are prevented from imitating today’s leaders.

But, like many activists, Shiva mistakenly assumes that international corporate gain always comes at the expense of the poor. Intellectual property rulemaking is not a zero-sum game. A balanced intellectual property system that accommodates national as well as industrial interests can be a critical ingredient for development. In fact, TRIPS was part of a bargain in which rich countries opened their markets to agricultural produce, textiles, and other goods from developing countries in exchange for the agreement’s adoption. Although it is true that rich countries have not fully carried out their side of the bargain — agricultural sectors are still frequently protected from foreign competition — eventually, the gains made in trade may more than offset intellectual property-related losses for developing countries.

Rather than targeting the supposed inequities that flow from TRIPS, Shiva should channel her criticism toward the behavior of rich states. Some trade ministries in developed countries have begun to offer poor countries market access agreements in exchange for "TRIPS-plus" standards of intellectual property. With the United States and other countries aggressively promoting such measures, developing countries are sometimes being strong-armed into accepting standards even more stringent than those found in developed countries. For example, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua have agreed to adopt the European and American standard for copyright — life of the author plus 70 years — but without the protections of the "fair use doctrine" that keeps the American system somewhat balanced. For those who believe countries should tailor their intellectual property rules to their levels of development, such deals are extremely worrisome.

But they also reveal a silver lining: Despite what critics such as Shiva argue, the TRIPS text is anything but ironclad. For example, both the patent and copyright sections of TRIPS provide for limitations and exceptions, none of which are clearly defined. Rather than denounce TRIPS out of hand, a savvier approach would be for activists to exploit the agreement’s nuances to advance the development agenda.

It is not too late: Least-developed countries have until 2006 to ensure their laws and practices conform with TRIPS, and the WTO has extended the deadline for pharmaceutical patents to 2016. Because TRIPS is not going away, the winning strategy for poor countries is to use the agreement to their advantage.