Innovation, Science and Technology, and Development: Strategic Considerations for

IP Negotiations

First Annual G77 and China Course for Developing Country Negotiators: The Strategic

Dimensions of NegotiationsNovember 19-20, 2012

GenevaNirmalya Syam

InnovationTechnological change that leads to the introduction

of new or improved products and processes

• R&D• Absorption, diffusion and transfer of technology• Reverse engineering

Stages of Technological Development• Initiation stage: Technology imported as capital

goods• Internalization stage: Local firms learn through

imitation under a flexible IPR regime• Generation stage: local firms and institutions

innovate through their own R&D

The Relevance of IP

• IP – an incentive to reward inventors and creators …• … to benefit society through the use of such

inventions and creations and foster scientific and technological progress

• “… this court has consistently held that the primary purpose of our patent laws is not the creation of private fortunes for the owners of patents but is to promote the progress of science and useful arts ...“ (US Supreme Court in Motion Picture Patents Co., vs. Universal Film Mfg. Co. (243 U.S. 502, p.511, 1917))

The Relevance of IP

• IP does not mean ‘innovation’, it may deter innovation

- Access to and diffusion of manufacturing technologies - Access to technologies for climate change

The Relevance of IP

• Innovation and creativity also require competition and follow-on innovation and creativity

• Governments in formulating IP policy need to balance between:- Providing IP protection - Providing access by competitors and consumers

• IP policy should be coherent with public policy areas of education, health, agriculture, environment, local employment, etc.

Striking a Balance

• The extent to which IP should be protected varies with the level of development of the country, priorities identified and among sectors.

• No « one-size-fits-all » model IP law

• Historical evidence: (Europe, USA, Rep. Korea)- Early stages of technological development require broad public

domain for indigenous learning- Advanced stages of development require higher level of

protection of technological assets- Even technologically advanced economies depend on

competition and follow-on innovation

Development Oriented IP Policy - Challenges

• IP policy has to be integrated into different aspects of national development policies

• IP regimes must be in accordance with the realities of developing countries– innovation systems are fragmented and weak, and depend

overwhelmingly on foreign innovations– very limited public sector investment in scientific activities– domestic firms generate «minor» or «incremental»

innovations derived from the routine exploitation of existing technologies

Development Oriented IP Policy - Challenges

• Lack of local expertise • Technical assistance – lack of appropriate

development orientation• Limited coordination on IP issues between related

government departments• Coercion exerted by developed countries to deter use

of flexibilities and inappropriately raise standards of IP protection and enforcement

• Different components of IP (patents, trademarks, designs, copyright) may warrant different approaches

WIPO

ITU

UNCTAD

ISO

UNHuman Rightsbodies

CBD

FAO

UPOV

WHO UNIDO

UNESCO

UNEP

UPU

WCO

Interpol

UNDP

UNAIDS

UNFCCWTO

IPBilateral & Regional Trade &

Investment Agreements

IP discussions in Multilateral Forum

Ideal framework for cooperation:

Millennium Development Goals

Reality:

Focus on increasing IP protection & enforcement

..but CHANGING

Variety of issues: Traditional focus on increasing standards of protection and enforcement of IPRs and harmonization

Access, Affordability and availability of medicines – WIPO, WTO TRIPS Council, WHO

Production of medicines for diseases that mainly affect poor countries – WHO CEWG, GSPOA.

Access to global public goods, i.e clean air and water – WIPO, UNFCCC, UNEP

Missapropriation of genetic resources and associated traditional knowledge – WTO TRIPS Council, WIPO, CBD, Nagoya Protocol

Impacts of patents and PVP on small scale farming and sustainable agriculture – WIPO, WTO, UPOV

Commodification and privatization of life forms, i.e. plants and animals – WIPO, WTO

Traditional knowledge owners not rewarded and or respected – WIPO IGC GRTKF, WTO TRIPS Council

Erosion of genetic resources leading to loss of diversity in animal and plant varieties - WTO TRIPS Council, CBD

Anti-competitive practices associated with IP use, i.e. refusal to license - WIPO

IP-related technical assistance insufficient or inappropriate – WIPO, WTO

Lack of impact assessment of IP on development – WIPO CDIP

Impact of IP strategies of big business on SMEs - WIPO

Lack of focus on improving commercialization and marketing of technologies

Role of collaboration and non-IP, i.e. open, models for innovation - WIPO

Unforeseen consequences of over IP-enforcement – WIPO ACE, WCO, INTERPOL

Access to cutting edge technologies for economic development – WIPO, UNFCCC

Inoperability of technologies and systems due to IP in standards – WIPO, ITU

Access to research and educational materials – WIPO SCCR

The scope of fair use of copyrighted works in digital form and sharing over the Internet –WIPO SCCR

Important Issues in Relevant Fora

• WIPO – Mainstreaming development orientation in the technical assistance activities and norm-setting processes in WIPO; Implementation of the WIPO Development Agenda

• WTO, TRIPS Council – Retaining maximum flexibility in designing laws and regulations for IP protection and enforcement; interface with CBD;

• UNFCCC – The role of IPRs in relation to ensuring transfer of EST to developing countries

• WHO – Implementation of the GSPOA-PHI; CEWG recommendations for an R&D Treaty; keeping IP enforcement out of discussions on quality, safety and efficacy of medicines in the SSFFC negotiations

• Bilateral Negotiations – Resisting TRIPS plus provisions

Negotiating Considerations

• Coherence with national policy objectives - In multilateral, regional or bilateral negotiations, the outcome agreements should support domestic policy making on IP in accordance with development priorities in various sectors, and not constrict this policy space

• Coordination - Greater coordination among developing country negotiators within and across various fora where IP is a critical issue- Coordination between negotiators in CBD/Nagoya Protocol,

FAO, WTO and WIPO- Coordination among negotiators in WIPO, WTO and UNFCCC- Coordination on bilateral and regional trade and investment

agreement negotiators on IP chapters/provisions

How Can South Centre Assist• Facilitate involvement of think tanks, research institutions,

academics and civil society from the South on issues of IP and development

• Preparatory meetings

• Involvement of SC experts in technical assistance programmes

• SC assistance on national IP issues