[72]. A Way Forward If only that were true. [72] In other words, it is not share that matters; it is productivity growth across all sectors. “Each Party shall adopt or maintain measures as may be necessary, consistent with its legal principles, to establish the liability of legal persons for offences described in paragraph 1 or 5.” TPP, Article 26.7(3): “Measures to Combat Corruption.”; Moreover, the application of proportionality to all IP provisions provides a backstop should any country try to misuse trade secrets or other provisions in an absurd way that is clearly not the intention of the provision—if they tried, they could not blame the TPP. [52]. Identifying and engaging at each “point” requires a formal, coordinated, whole-of-government approach for each country engaged in this agenda. Policymakers need to elevate innovation policy on the global stage to a similar level as trade when it comes to debates about how to optimize global economic growth and welfare. 2 (1996): 181–186. % =B�" ������3vZ嬮��;��04���ؠ���Z)�����y����.N���Xj$r�܀��ڰ��G��'q�N��V�S�s�S�V��KU�@LJܛJ��Q0�ݣlbF��i@���V�r5 �Eu0!�?̾�q���`�|ԍRѢ��Ec�b{��=�^��)�\��NH>N5pU$w-�7Q�(�H���I�����z�����rNi�X����X3ˏ�C�8�:��x�}�T. Soumitra Dutta, Bruno Lanvin, and Sacha Wunsch-Vincent, http://www.wipo.int/edocs/pubdocs/en/wipo_gii_2015.pdf. Testimony on NAFTA at Twenty: Accomplishments, Challenges, and the Way Forward on Intellectual Property Wednesday, January 15, 2014 - 4:15pm MTE-NAFTA-Testimony-for-submission_FINAL-1 … Many developing countries, such as Brazil, India, and South Africa, consistently engage in debate grounded in an ideologically hostile view of IP. [108]  N. Stephan Kinsella, “Against Intellectual Property,” Journal of Libertarian Studies Vol. Xiolan Fu, “Foreign Direct Investment, Absorptive Capacity and Regional Innovation Capabilities: Evidence from China,” Oxford Development Studies 36, no. If a nation promulgates a weak IP regime and turns a blind eye to rampant piracy, imports of IP-based goods and services paid for with an export of money would by definition decline. [101] In addition to this, many opponents equate the unfettered dissemination of copyrighted-protected material (i.e., piracy) as free speech and expression. Ideally, new and changing global production and innovation networks would result in a commensurate debate at the multilateral level, such as at WIPO or WTO, over how to update current rules and institutional frameworks to support greater global trade and innovation. Technology Transfer in the TRIPs Age: The Need for New Types of Partnerships Between the Least Developed and Most Advanced, Harvey E. Bale, Jr., Asst. Innovation represents the creation of new value for the world, whether that “value” is created through new technologies, new business models, new products and services, or new forms of social entrepreneurship. Here’s what you need to know to protect your IP internationally. A 2016 United Nations Development Programme (UNDP) report called for reforming global institutions and trade and investment rules. http://dx.doi.org/10.1787/5jlv8zmp86jg-en, http://dx.doi.org/10.1787/9789264044050-en, http://dx.doi.org/10.1787/9789264047693-en, http://www.law.gwu.edu/Academics/research_centers/ciec/Documents/Notes on Creativity/IPANDECONOMICGROWTH.pdf, https://itif.org/publications/2012/03/08/global-innovation-policy-index, http://dx.doi.org/10.1787/5km7fmwz85d4-en, http://documents.worldbank.org/curated/en/897171468766206713/How-stronger-protection-of-intellectual-property-rights-affects-international-trade-flows, , "Effects of Terms of Trade Gains and Tariff Changes on the Measurement of US Productivity Growth,", American Economic Journal: Economic Policy 5, Wolfgang Keller, "International technology diffusion,", https://www.iprsonline.org/resources/docs/Maskus%20-%20Encouraging%20International%20ToT-%20Blue%207.pdf, https://www.iprsonline.org/New%202009/foray_may2009.pdf, https://itif.org/publications/2017/04/26/world-intellectual-property-day-latest-data-underscores-how-ip-incentivizes, https://www.innovationfiles.org/world-intellectual-property-day-highlighting-how-ip-incentivizes-innovation/, https://www.innovationfiles.org/the-creative-cost-of-piracy/, http://americansfortaxreformfoundation.org/userfiles/ATR_2011%20INDEX_Web2.pdf, http://www2.itif.org/2018-innovate-4-health-case-studies.pdf?_ga=2.181250279.1944981986.1556039892-719207280.1528225744, http://www.who.int/workforcealliance/knowledge/resources/GHWA-a_universal_truth_report.pdf, http://www.bbc.com/news/world-africa-36397164, https://onlinelibrary.wiley.com/doi/abs/10.1002/cncr.27410, https://capx.co/a-dose-of-reality-on-drug-patents/, http://www.ipwatchdog.com/2016/09/12/essential-medicines-off-patent/id=72542/, http://economy.nationaljournal.com/2010/08/how-can-we-boost-productivity.php, https://www.mckinsey.com/industries/public-sector/our-insights/how-to-compete-and-grow, http://www.wipo.int/edocs/pubdocs/en/wipo_gii_2015.pdf, http://www2.itif.org/2016-contributors-and-detractors.pdf, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2705906, http://www.itif.org/files/2010-good-bad-ugly.pdf, http://www.oecd.org/els/pharmaceutical-pricing-policies-in-a-global-market.htm. Stephen J. Ezell and Robert D. Atkinson, “Fifty Ways to Leave Your Competitiveness Woes Behind: A National Traded Sector Competitiveness Strategy” (Information Technology and Innovation Foundation, September 2011), http://www2.itif.org/2012-fifty-ways-competitiveness-woes-behind.pdf. It’s a stalemate. Scholars and advocates who support intellectual property engage in vigorous and reasoned debates about how to balance rights, exceptions, and limitations in both domestic law and trade agreements—albeit based around a shared understanding that intellectual property and its protection are critical. McKinsey Global Institute defines knowledge-intensive goods and services flows as those that have a high R&D component or utilize highly skilled labor. %PDF-1.4 They also found a significant association between copyrights and export turnover. Figure 1: The Concentric Circles of Opposition to Strong IP Provisions in Trade Agreements, Many NGOs and their advocates oppose intellectual property, as they consider it an attack on human rights, especially free speech and individuals’ rights to participate in science and culture. This view is well articulated by Argentinean law and economics scholar (and head of the prominent anti-IP NGO, the South Centre) Carlos Correa, who contends, “The monopoly rights granted by intellectual property rights [are] regarded as an instrument to avoid further catching-up based on imitative paths of industrialization; that is, as a tool to freeze the comparative advantages that had so far ensured U.S. technology supremacy.”[110] Unfortunately, this view permeates the positions of many developing-country representatives to organizations such as the World Intellectual Property Office, WTO, and of course, UNCTAD. on protocols, and the way forward for trade in goods and services as well as for subsequent negotiation areas that include investment, intellectual property rights and competition policy. The following section cannot list every opponent of IP, but showcases examples from some of the most strident opponents of IP in these organizations. IPR opponents paint developing countries as the victim when they argue that developed countries should hand over IP, as they contend the state (i.e., the broader public) in developing countries should have the freedom to exploit or undermine intellectual property, especially if it is to address key societal issues. For instance, the Chinese government’s investment of over $160 billion as part of its “2014 National Guidelines for Development and Promotion of the IC Industry,” which seeks to develop a Chinese semiconductor industry heavily backed by government funds, introduces non-market-based competition that has the potential to denude innovative firms’ ability to compete in global markets. 555 (2011): 1161–1191. Maskus, “Encouraging International Technology Transfer.”. intellectual property is addressed in a constructive and balanced manner, the potential for achieving sustainable and realistic outcomes from the climate talks could be compromised. [23], Robust intellectual property rights spur innovative activity by increasing the appropriability of the returns to innovation, enabling innovators to capture enough of the benefits of their own innovative activity to justify taking considerable risks. The institutional framework for this program could be a specialized program under WIPO, given its relationship with key donors and its mission being “to lead the development of a balanced and effective international IP system that enables innovation and creativity for the benefit of all.”[172] Donors could fund this program through an additional FIT arrangement specifically made to support such a global EPSCOR. Opponents of stronger IP rights further advance the view that weak protection and forced redistribution of IP are shortcuts to economic development or paths to address important international challenges such as global warming and human health. IPR toolkits for additional countries are posted periodically. [23]. Technology transfer: the way forward Newsletters. A large and active group of academics in both developed and developing nations working on intellectual property issues see IP as something to be weakened, removed, and generally opposed, often due to cross-sectoral concerns over development and access to medicine, human rights (especially freedom of expression online), and the digital economy (especially copyright online). United Nations Conference on Trade and Development (UNCTAD), Periodic Report 1986: Policies, Laws, and Regulations on Transfer, Application, and Development of Technology (Geneva: UNCTAD, 1986). Their study concluded that developing countries can entice technology transfer from the North by providing IPR protection for incoming products (although they note there is a need for redoubled R&D efforts in developed countries to spur needed innovations). Intellectual property protection can, however, affect the enjoyment of … Similarly, when trademark protection increased by 1 percent, there was an associated R&D increase of 1.4 percent. One of the biggest challenges policymakers and innovators in developing countries confront again and again is scarcity—in access to trained professionals, in transportation, and in other infrastructure. A/810 (12 December 1948), Article 27. In other areas, such as with regard to improving intellectual property protection and enforcement in the digital economy, leadership has been wanting. Joseph A. Schumpeter, “Science and Ideology,” American Economic Review, 39, no. To be truly effective, a country needs to designate a senior lead officer and agency to drive a formal, coordinated strategy and message between the respective agencies responsible for domestic intellectual property administration, commerce, international trade, science and technology, and development, among others. The WIPO technical assistance work focuses on three main areas of activities: national IP strategies, policy and legislative advice, and IP office business solutions.[166]. [87] Thus, the intention of an innovation mercantilist strategy is not so much to maximize national- and global-level innovation and the role it plays in driving long-term economic growth, but to ensure innovation’s outputs—ideas, goods, services, and exports—are produced in one’s own country. [60] The challenge is even more daunting when it comes to specialists. Both involve legitimate public policy goals, but there is a clear conflict between them.[88]. Coupled with the fact that many developing nations provide a welcome audience for such views, the IP opponents have been effective enough that a key framework condition for global innovation is now threatened. (an International Drug Purchase Facility established as an innovative funding mechanism to accelerate access to high-quality drugs and diagnostics for HIV/AIDS, malaria, and tuberculosis in countries with a high burden of those diseases) has used the UNHLP report as cover to further push ahead with work to advise countries on how to use compulsory licensing and other TRIPS flexibilities, as it views TRIPS as a barrier to access to medicines. Furthermore, as it relates to the traditional dichotomy that still permeates the ideological opposition to intellectual property at the international level, it is not about “North vs. South” anymore, it is about whether one lives in a country whose policymakers understand that stronger intellectual property rights are beneficial for innovation and economic growth. [53]. Intellectual Property Enforcement Coordinator provides a useful model. These include policies related not only to IP but also to scientific research, technology commercialization, investments in information and communications technology, education and skills development, taxes, trade, government procurement, competition, and regulatory policies. Ishac Diwan and Dani Rodrik, “Patents, Appropriate Technology, and North–South Trade,” Journal of International Economics 30, no. Gene Grossman and Elhanan Helpman, Innovation and Growth in the Global Economy (Cambridge, Massachusetts: The MIT Press, 1991). UNCTAD, Trade and Development Report 2014, (Geneva: UNCTAD, 2014), http://unctad.org/en/PublicationsLibrary/tdr2014overview_en.pdf. [34]. [147]. endobj Some countries may be signatories to international intellectual property treaties and agreements and each type of intellectual property may be regulated differently. Box 2: The Misguided Focus of the Green Mercantilists. This is especially the case in many developing countries where innovation is sorely needed. This is despite the fact that many of these laws have been in place for decades and reflect international norms. [13]. In addition to this, many opponents equate the unfettered dissemination of copyrighted-protected material (i.e., piracy) as free speech and expression. As noted, they distrust the private sector, but go a step further because they also distrust the public sector because they believe government is ineffectual and overbearing. For those intangible assets that have been acquired externally, it’s quite easy to determine the … The way forward: learnings from important intellectual property case laws & developments from 2014 Nishith Desai Associates To view this article you need a … “Resolution No. Stephen J. Ezell, Adams B. Nager, and Robert D. Atkinson, “Contributors and Detractors: Ranking Countries’ Impact on Global Innovation” (Information Technology and Innovation Foundation, January 2016), http://www2.itif.org/2016-contributors-and-detractors.pdf. [143]. Intellectual property has a dual role in fostering technological innovation and in contributing to the dissemination and transfer of technology. 2, (1949): 345û359. [84]  Stephen J. Ezell, “Global IP Infringement’s Significant Cost to the U.S. Economy,” Innovation Files, February 26, 2015, https://www.innovationfiles.org/global-ip-infringements-significant-cost-to-the-u-s-economy/. This report begins by establishing the essential link between IP and innovation (and trade and innovation), examining the scholarly literature documenting how robust IPRs benefit all nations (developed and developing alike), and by explaining why robust IPRs are essential to maximize the output of innovation globally, thus making IP a legitimate and fundamental component of trade agreements and global trade governance. [98]  Frank Lichtenberg, “Pharmaceutical Innovation and Longevity Growth in 30 Developing and High-income Countries, 2000–2009,” Health Policy and Technology 3(1): 36-58, March 2014. This fundamental trade-off is inescapable. Many NGOs, such as the Center for International Governance Innovation, the Electronic Frontier Foundation (EFF), the Free Software Foundation, Knowledge Ecology International, Medicins Sans Frontieres, the Open Media Organization, Public Knowledge, and the South Centre, among others, were founded, in part, to oppose the role intellectual property plays in extending private rights over what they classify as public goods. Again, the nature of this opposition is not in nuance, evidence, or pragmatism. As an extension of this, the United States and others need to ensure their engagement covers the full spectrum of organizations that discuss IP, as one consequence of the current stasis in the IP debate is proponents of weaker intellectual property rules have increased their efforts to target alternative forums that may not be based on member-state decisions and goals. Crucial to a global EPSCOR would be a transparent process, an expert review board, and clear rules for country eligibility and project criteria. [163] But to achieve this, the United States and likeminded countries will need to develop a more comprehensive and proactive strategy to engage—whether individually or collectively—with these countries to harmonize existing procedures and processes, and build institutional capacity to more effectively administer and enforce intellectual property rules. Yet, indicative of the ideological divide, many proponents of weak or nonexistent intellectual property believe all information (copyright-protected or not) should be free, and governments should not only turn a blind eye to digital piracy, but also actively tie the hands of companies that seek to limit digital piracy. 2 (2009): 191–201. These goals are not mutually exclusive. endobj The following section examines some of the central ideological and policy positions asserted by IPR opponents. For example, see Intellectual Property and Trade: Hearings Before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Comm. [45]  Pei-Cheng Liao and Kar-yiu Wong, “R&D Subsidy, Intellectual Property Rights Protection, and North–South Trade: How Good Is the TRIPS Agreement?” Japan and the World Economy 21, no. Even within developing countries that have traditionally pushed for weak or no intellectual property protections, such as China, India, and South Africa, there are stakeholders—individual policymakers, academics, government agencies, trade associations, and research institutions—that recognize both the need to focus on innovation and that IP plays a key supporting role. Margaret Kyle and Yi Qian, Intellectual Property Rights and Access to Innovation: Evidence from TRIPS (NBER Working Paper No. 1"AQ2aq�#�u6��BR37��s$%�&v�t�5тCSU'�� ? [59]. [99] In other words, innovative drugs can significantly improve quality of life and reduce health care system costs for nations. [3] Everywhere we go, we are surrounded by intellectual property. [73]. Richard C. Owens, “Intellectual Property: Prosperity, Trade, and Pharmaceuticals” (power point presentation at event “Chile’s Progress Toward a Knowledge and Innovation-driven Economy,” April 16, 2019, Santiago, Chile). There is an obvious need to ensure intellectual property laws balance protection, enforcement, and access, and consider different economic and societal interests, yet the debate involving IP and human rights is often far removed from nuance and careful analysis; and is usually based on inflamed passion and misinformation. It then uses the debate over IP in negotiations toward the Trans-Pacific Partnership agreement as a recent case study in how opponents seek to undermine efforts to improve IP rules internationally. [124]. Cavazos Cepeda, Lippoldt, and Senft, Policy Complements. While GVCs and GINs represent relatively new constructs, there is early evidence they will be central to future deliberations around trade and innovation policy. Such ideological opposition to IP at the UN is perhaps best demonstrated by UNCTAD. IP skeptics believe there is no overlap between company interests and worker interests.

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