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Abstract
Developing countries find themselves pressured to harmonise their intellectual property (IP) standards so that they match those of the United States, Europe and Japan. This article provides historical evidence to support the authors’ claim that when developed countries demand that the rest of the world adopt their current IP regulations, developed countries are preventing other countries from adopting appropriate patent and copyright standards for their levels of development. Developed countries thereby deny a freedom to others that they themselves enjoyed when they were developing.
Notes
‘Strong’ is meant to refer to the extent of enforceability of the IP rights and to indicate the absence—or at least relative lack—of exceptions to patentability by subject matter or technological field.
See Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy. Report of the Commission on Intellectual Property Rights, Commission on Intellectual Property Rights, London, 2002; Graham Dutfield (lead author), Intellectual Property Rights: Implications for Development, United Nations Conference on Trade and Development (UNCTAD) and International Centre for Trade and Sustainable Development (ICTSD), Geneva, 2003. Both documents can be taken as supporting the view that international IP rules are too inflexible to accommodate the development needs of each country. For an alternative view see R. Sherwood, ‘Why a uniform intellectual property system makes sense for the world’, in Mitchel B. Wallerstein, Mary E. Mogee and Roberta A. Schoen (eds), Global Dimensions of Intellectual Property Rights in Science and Technology, National Academy Press, Washington, DC, 1993.
It is worth mentioning here that India’s film industry does not appear to have been disadvantaged by the fact that India had a copyright regime which was Berne Convention‐compliant for much of the twentieth century.
One could also mention here that many developing countries are well‐endowed in terms of traditional knowledge, innovations, technologies and cultural works and expressions.
For a very different analysis that comes to the same conclusions, see K. E. Maskus and J. H. Reichman, ‘The globalization of private knowledge goods and the privatization of global public goods’, Journal of International Economic Law, 7, 2, 2004, pp. 279–320.
Sherwood, op. cit.; Commission on Intellectual Property Rights, op. cit.; Dutfield, op. cit.
For an insightful account of how international (but US headquartered) copyright, trade mark and patent using firms lobbied for an agreement to achieve these goals, see M. P. Ryan, Knowledge Diplomacy: Global Competition and the Politics of Intellectual Property, Brookings Institution Press, Washington, DC, 1998.
Such as when efforts were made to drive a wedge between India and Brazil on the one side, and the African Group on the other during the negotiations relating to the 2001 Agreement on the TRIPS Agreement and Public Health.
Letter from Robert Zoellick to David Walker, Comptroller of the United States Patent Office, December 2003 (http://www.ustr.gov/releases/2003/12/2003‐12‐03‐letter‐gao.pdf).
This is not to say that the IP regimes of the developed countries are necessarily TRIPS compatible in their entireties.
WIPO is a UN specialised agency whose mandate is, inter alia, to promote IP.
F. S. Musungu and G. Dutfield, Multilateral Agreement and a TRIPS Plus World: The World Intellectual Property Organization, TRIPS Issues Paper no. 3, Quaker United Nations Office and Quaker International Affairs Programme, Geneva, 2003. One of the earliest calls for the harmonisation of substantive patent law came from the USA in 1966, where the President’s Commission on the Patent System declared: ‘the ultimate goal in the protection of inventions should be the establishment of a universal patent, respected throughout the world, issued in the light of, and inventive over, all of the prior art of the world, and obtained quickly and inexpensively on a single application, but only in return for a genuine contribution to the progress of the useful arts’. Quoted in J. E. Rogan, ‘The global recognition of patents: an agenda for the 21st century’, paper prepared for the WIPO Conference on the International Patent System, Geneva, 25–27 March 2002 (http://www.us‐mission.ch/press2002/0326rogan.htm).
In United States patent law, the terms ‘non‐obvious’ and ‘useful’ are used instead of ‘inventive step’ and ‘capable of industrial application’.
These include authors, publishers, performers, film production companies, phonogram producers, internet service providers and broadcasters.
Dutfield, op. cit.
World Bank, Global Economic Prospects & the Developing Countries 2002, World Bank, Washington, DC, 2001.
Michael J. Trebilcock and Robert Howse, The Regulation of International Trade, 2nd ed., Routledge, London, 1999, p. 314.
Peter Drahos, ‘States and intellectual property: the past, the present and the future’, in D. Saunders and Brad Sherman (eds), From Berne to Geneva: Recent Developments in Copyright and Neighbouring Rights, Australian Key Centre for Cultural and Media Policy and Impart Corporation, Brisbane, 1997, pp. 47–70.
GRAIN, ‘WIPO moves toward “world” patent system’ (http://www.grain.org/publications/wipo‐patent‐2002‐en.cfm), 2002.
See Ha‐Joon Chang, Kicking Away the Ladder: Development Strategy in Historical Perspective, Anthem, London, 2002. The expression was coined by the nineteenth century German economist, Friedrich List.
Chalmers Johnson, Japan: Who Governs? The Rise of the Developmental State, W.W. Norton & Co., New York, 1995, pp. 74–5.
A. F. C. Wallace and D. J. Jeremy, ‘William Pollard and the Arkwright patents’, William and Mary Quarterly, 34, 1977, pp. 404–25.
For more details on the evolution of the German and Swiss patent laws, see Graham Dutfield, Intellectual Property Rights and the Life Science Industries: A Twentieth Century History, Ashgate, Aldershot, 2003.
J. P. Murmann and R. Landau, ‘On the making of competitive advantage: the development of the chemical industries of Britain and Germany since 1850’, in Ashish Arora, Ralph Landau and Nathan Rosenberg (eds), Chemicals and Long‐term Economic Growth: Insights from the Chemical Industry, John Wiley & Sons, New York, 1998, p. 30.
H. Kronstein and I. Till, ‘A reevaluation of the international patent convention’, Law and Contemporary Problems, 12, 1947, pp. 765–81 at 773–4.
J. A. Johnson, ‘Hofmann’s role in reshaping the academic–industrial alliance in German chemistry’, in C. Meinel and H. Scholz (eds), Die Allianz von Wissenschaft und Industrie August Wilhelm Hofmann (1818–1892), VCH, Weinheim, 1992, p. 175.
A. Bercovitz‐Rodriguez, ‘Historical trends in protection of technology in developed countries and their relevance for developing countries’, United Nations Conference on Trade and Development, Geneva, 1990, p. 6.
Philip W. Grubb, Patents for Chemicals, Pharmaceuticals and Biotechnology, Clarendon Press, Oxford, 1999, p. 23.
L. F. Haber, The Chemical Industry during the Nineteenth Century: A Study of the Economic Aspect of Applied Chemistry in Europe and North America, Clarendon Press, Oxford, 1958, p. 203.
Murmann and Landau, op. cit., p. 31.
U. Wengenroth, ‘Germany: competition abroad—cooperation at home, 1870–1900’, in Alfred D. Chandler, Franco Amatori and Takashi Hikino (eds), Big Business and the Wealth of Nations, Cambridge University Press, Cambridge, 1997, p. 144.
Quoted in David F. Noble, America by Design: Science, Technology, and the Rise of Corporate Capitalism, Knopf, New York, 1977, p. 16.
C. Simon, ‘The rise of the Swiss chemical industry reconsidered’, in Ernst Homburg, Anthony S. Travis and Harm G. Schröter (eds), The Chemical Industry in Europe, 1850–1914: Industrial Growth, Pollution, and Professionalization, Kluwer Academic, Dordrecht, 1998, pp. 17–8.
Haber, op. cit., pp. 119–20.
F. Aftalion, A History of the Chemical Industry, University of Pennsylvania Press, Philadelphia, 1991, p. 39.
H. van den Belt, ‘Why monopoly failed: the rise and fall of Société La Fuschine’, British Journal for the History of Science, 25, 1992, pp. 45–63.
Bernadette Bensaude‐Vincent and Isabelle Stengers, A History of Chemistry, Harvard University Press, Cambridge, MA, 1996, p. 184.
Simon, op. cit., p. 17.
Edith T. Penrose, The Economics of the International Patent System, Johns Hopkins University Press, Baltimore, 1951, p. 17.
This is not to suggest that interest group politics was never a major factor involved in decisions to exclude fields of technology from the patent system.
P. Ganguli, India, in: F. H. Erbisch and K. M. Maredia (eds), Intellectual Property Rights in Agricultural Biotechnology, CAB International, Wallingford, 1998, p. 138.
B. K. Keayla, Conquest by Patents. TRIPs Agreement on Patent Laws: Impact on Pharmaceuticals and Health for All, Centre for Study of Global Trade System and Development, New Delhi, 1999, p. 29.
A number of developing countries (e.g. Egypt and Brazil) introduced patent legislation motivated by similar concerns.
Personal communication, 2000.
Prabuddha Ganguli, Gearing Up for Patents: The Indian Scenario, Universities Press (India), Hyderabad, 1998, pp. 56–7.
Ibid., p. 131, note 37.
J. Lanjouw, The Introduction of Pharmaceutical Product Patents in India: ‘Heartless Exploitation of the Poor and Suffering’? NBER Working Paper No. 6366, National Bureau of Economic Research, Cambridge, 1998, p. 4.
B. P. Abraham, ‘The emerging patents and intellectual property rights regime: implications for Indian industry’, in P. Bhattacharya and A. R. Chaudhuri (eds), Globalisation and India: a Multi‐dimensional Perspective, Lancer’s Books, New Delhi, 2000, p. 98.
S. Prakash, India. Part 2: Agriculture (Trade and Development Case Studies), Trade and Development Centre (WTO and World Bank), Geneva (http://www.itd.org/issues/india2.htm), 1998.
Ibid.
Quoted in Chalmers Johnson, MITI and the Japanese Miracle: The Growth of Industrial Policy, 1925–1975, Stanford University Press, Stanford, 1982, p. 247.
M. Fisher, ‘Growth of the Japanese patent system: a lesson for us all?’, Intellectual Property Quarterly, 22, 1, 2004, pp. 85–113, at p. 113.
L. Kim, Technology Transfer and Intellectual Property Rights: The Experience of Korea, Issues Paper no. 2, UNCTAD–ICTSD Project on Intellectual Property Rights and Sustainable Development, Geneva, 2003, p. 5.
N. Kumar, Technology and Economic Development: Experiences of Asian Countries, Commission on Intellectual Property Rights, London, 2002.
Mark Rose, Authors and Owners: The Invention of Copyright, Harvard University Press, Cambridge, MA, 1994, pp. 10–1, 15.
W. R. Cornish, ‘The international relations of intellectual property’, Cambridge Law Journal, 52, 1, 1993, pp. 46–63, 48, 50.
In 1837, ‘Henry Clay, a Senator from Kentucky, presented a petition by 56 British authors arguing for recognition of their literary property rights. The petition, which alleged that authors had “suffered from injury in their reputation and property”, was met by stern defence of America’s “utilitarian approach to copyright”. Claims that the widespread copying of foreign works “furthered dissemination of the Enlightenment” often appeared alongside less principled arguments that the American publishing industry, which employed an estimated 200,000 people, would lose a significant amount of business if foreign books were granted copyright protection’. D. Burkitt, ‘Copyrighting culture—the history and cultural specificity of the Western model of copyright’, Intellectual Property Quarterly, 2, 2001, pp. 146–86, 156–7.
Musical Opinion & Music Trade Review, February 1883, pp. 75–6, as reprinted in J. Coover, Music Publishing, Copyright and Piracy in Victorian England, Mansell Publishing, London, 1985, p. 9.
U. Suthersanen, ‘Napster, DVD and all that: developing a coherent copyright grid for Internet entertainment’, in Eric Barendt and Alison Firth (eds), The Yearbook of Copyright and Media Law, Oxford University Press, Oxford, 2001/2, pp. 210–1.
B. Z. Khan, Does Copyright Piracy Pay? The Effects of US International Copyright Laws on the Market for Books, 1790–1920, National Bureau of Economic Research Working Paper W10271, 2004.
‘Politics’, Atlantic Monthly, 29, 173, 1872, pp. 387–8.
For further information on WIPO’s Patent and Digital Agendas, see the WIPO website (www.wipo.int). For a critical commentary see Musungu and Dutfield, op. cit.
One may, of course, reasonably counter that the current behaviour of the Americans and Europeans is not hypocrisy, but reflects a genuine change of mind. But let us for a moment consider the response of the US government to the recent anthrax biological warfare scare of two years ago. The government decided to stockpile vast quantities of Bayer’s ciprofloxacin (Cipro) to ensure that up to 10 million people could receive immediate treatment should the need arise. The government was concerned not only about whether it was possible to acquire so much Cipro at short notice but about the cost of doing so. Tommy Thompson, the Secretary of Health and Human Services, threatened that if Bayer did not halve the price he would simply acquire the drug from other sources. At one stage he even raised the possibility of asking Congress to pass legislation exempting the government from compensating Bayer for ignoring its patent. This tough approach worked. Thompson successfully negotiated a large discount. But, by threatening to override the patent, the US government, which was at the same time pressuring developing country governments not to issue compulsory licences to generic drug producers, looked hypocritical.
In fact, it is conceivable that one reason for the continuing unpatentability of computer programs and business methods in Europe is the concern that US firms will file most of the patents. In the future, Europe and the US may well feel the need to rethink their levels of protection if the proportion of new patents filed by Chinese and Indian firms increases markedly.