de beer summary of remarks

8/14/2019 De Beer Summary of Remarks

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Regional Seminar on the implementation of the WIPOdevelopment agenda

Summary of remarksby Professor Jeremy de Beer

I. Implementation challenges and opportunitiesThe development agenda is the most important issue to face the

international IP community since TRIPs, and perhaps ranks among themost significant potential turning points ever in global IP policy. Thelitmus test for success, however, is effective implementation of itsrecommendations. This is the subject of my recent edited collection ofessays in the book, Implementing the WIPOs Development Agenda.

Among the greatest challenges to implementing thedevelopment agenda will be better defining what the agenda is, itsstatus and effect and its practical consequences. 20th century IP

policymaking has been criticized as pursuing an agenda ofunderdevelopment, protecting knowledge and skills of the leaders ofthe pack. The development agenda is a response to the upwardharmonization of minimum standards of protection, rejecting universalnorms and reemphasizing the public interest in appropriatelycalibrated IP systems. It can be defined according to fourcharacteristics: malleability, complexity, opportunity and gravity.

Constructive ambiguities make the agenda malleable, andadaptable to suit the various needs of different constituencies andcontexts. This renders its technical legal effect unclear, and risksinterpretation that validates the status quo. The agenda is complex

because it implicates many institutions and organizations, itoversimplifies the classification of heterogeneous stakeholders intotraditional groups and it fails to acknowledge intra-group and intra-national conflicts. The current opportunity for an IP paradigm shift isnot unprecedented, but current conditions justify greater optimismthan in the past. There is greater public scrutiny of global IP policyattributable to civil society engagement, more interrogatory researchand empirical evidence of the impact of IP on society, and greatercritical awareness of IP externalities among developing countryrepresentatives. The consequences of failing to successfully implementthe development agenda would be grave, threatening to undermine

WIPOs status as the most appropriate forum in which to discuss IP anddevelopment.

The agenda will be further defined through the concrete stepstaken to implement its recommendations.

II. IP and development in other forumsImplementing the development agenda is not simply a task for

WIPO and other international organizations. It is a shared responsibility


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Competition policy generally puts tries to encourage, notrestrain, competition. Regulatory tools can deal with marketmonopolies and/or agreements that restrain trade. Monopolies per seare neither illegal nor undesirable. It is instead the means by whichmarket power is acquired and abused that may be problematic. IP is

sometimes characterized as a monopoly right, but this is only accuratein reference to the particular product protected, such as a specificcopyrighted work or patented invention. To the extent that there existmarket substitutes for particular products, an IP right is not technicallya monopoly in the ordinary meaning of the term. Trade can berestrained by horizontal or vertical agreements. Horizontal agreementsare most problematic where would-be competitors collude to raiseprices. Tied selling can also characterized as anti-competitive.

Within the field of IP, practices that might trigger competitionpolicy concerns include collective licensing of copyrights to raiseprices, patent pooling to limit competition, and using technological

protection measures to engage in tied selling or other anti-competitivebehaviour. The doctrines of IP misuse and/or compulsory licensing canbe used to address such concerns.

Although IP policies and competition policies are designed toachieve the same objective (albeit through different means), they arenot interchangeable substitutes for one another. Importantly, strong IPrights should be coupled with strong competition rules to maintaincompetitive equilibrium.

IV. Closing Roundtable on Moving ForwardThe global IP paradigm is shifting. In the 15 years since the TRIPs

Agreement, one of WIPOs main achievements has been to build IPawareness and capacity in developing countries. The focus of its effortswas on trade and economic growth, and the role of IP in facilitatingthose goals. Meanwhile, however, there has been a shift in thinkingabout the concept of development, away from an emphasis oneconomic growth alone and toward a holistic understanding of thehuman freedoms that economic growth facilitates.

The essence of the development agenda is a reflection of thismore robust understanding of development, and a consequentreinvigorating of the broad public policy implications of IP. Thedevelopment agenda is not intended to detract from the merits of an

appropriately designed IP system, nor necessarily a call for reducedstandards of protection. Instead, it essentially recognizes the IPsystems impact on other issues relevant to human flourishing. Theseinclude population health, food security, education systems, theenvironment, cultural participation, information communications, andmore.

One of the next steps in implementation of the developmentagenda is expanding this emerging, nuanced understanding of the


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varied roles that IP plays in society and public policy making. Thiscannot be achieved by WIPO or its member states, either acting aloneor in collaboration with other international institutions. Understandingthe essential principles of the development agenda must spread to thenational level, through national IP offices working together with health,

agriculture, environment, education, culture, communications andother agencies implicated by IP policy, and eventually to individualcitizens of both developing and developed countries. The ultimateresult can be a more human-centred system of IP policy.

de beer summary of remarks

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