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Ven 4 Feb 2005 11:50:41 EST
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published in the SUNS (South North Development Monitor) of 4 Feb 2005
by Martin Khor
Offsetting IPRs' adverse effects on access to knowledge
Geneva 2 February (Martin Khor) -- The public's access to knowledge is
increasingly hindered by imbalanced intellectual property regimes which
are tilted to the advantage of IP holders vis-à-vis users and consumers,
and there is a need to establish a treaty or at least principles to
redress this imbalance as part of a "development agenda" in fora dealing
with intellectual property protection.
This was a key message emerging at the start of an experts meeting on
the WIPO Development Agenda and a treaty on access to knowledge being
held here on 3-4 February. The meeting, attended by 60 academics,
researchers, public interest groups and diplomats, is organized by the
Consumer Project on Technology (CPTech), the International Federation of
Library Associations and the Third World Network.
The meeting is reviewing how copyright and patent laws are restricting
access to knowledge and discussing various proposals for offsetting
The discussions are also in the context of the proposals put forward by
many developing countries for a "Development Agenda" in the World
Intellectual Property Organisation. One of the Agenda's proposals is to
establish a treaty on access to knowledge.
CP Tech director and the meeting's main organizer James Love said that
the access to medicines campaign by some NGOs had raised awareness of
the adverse effects that international IP agreements can have, and the
need for reform. This was to some extent achieved by the adoption by
the WTO of the Doha Declaration on TRIPS and health and its subsequent
decision on paragraph 6 of that Declaration.
Similarly, he said, knowledge is an essential public good and access to
it is vital, and thus it was vital to review IP treaties to see how they
impact on access to knowledge, and to establish a new treaty or elements
of a treaty, to promote such access. The meeting had brought together
representatives from many organizations in different fields that are
concerned about aspects of access to knowledge, and it aimed to
brainstorm as to how to move ahead on the issue, he added.
Diplomats from some developing countries that had been active in the
Development Agenda process at WIPO explained its origins and rationale.
In recent years there had been a debate in various fora about the
effects of IP regimes, for example in the WTO and WHO on the TRIPS and
health issue, said a diplomat.
There has also been increasing debate in academic circles on whether the
IP regime had gone too far in protecting IP holders at the expense of
the public interest. However, until a few years ago, the discussions at
WIPO had been "out of sync" with and even contrary to this questioning
trend, and in fact there were initiatives at WIPO for a patent law
treaty that was "TRIPS-plus" and would lead to upward harmonization of
patent laws around the world. The effect of this would be detrimental
as the developing countries were still grappling with how to implement
their already heavy TRIPS obligations.
The aim of the Development Agenda proposal was to bring the discussions
at WIPO in line with the discussions going on at other fora, and to
start a process at WIPO to see if it could contribute to the
developments in other fora, said the diplomats. A key part of the
Agenda is institutional reform, to change the WIPO's way of thinking and
to mainstream development and redress its overly pro-IP bias.
Besides the Development Agenda, said the diplomats, another initiative
of developing countries in WIPO is a proposal to extend exceptions and
limitations to copyright, aimed at bringing about more balance between
the interests of copyright holders and users.
For the past many years, there had not been an exercise to provide more
rights to consumers in copyright regimes. On the contrary,
international norms had been established to expand the copyright
holders' rights, without doing studies on the effects of these new norms
on the public and consumers. The access of many consumers were cut off
as they could not afford the high monopolistic prices made possible by
the enhanced rights given to copyright holders.
To deal with this problem, the general proposal was put forward by
developing countries on exceptions and limitations (including for
librarians and people with disability), and specific proposals would now
be needed, added the diplomats.
South Centre team leader on intellectual property, Sisule Musungu,
speaking in his personal capacity, said the Development Agenda proposal
gave a conceptual basis (and not just technical aspects) to the
development dimension of IP as it frames the issues in light of
developments outside WIPO.
The WIPO decision (at its Assembly in October) to take up the
Development Agenda was a victory for the co-sponsoring countries and
their supporters as one could not imagine WIPO agreeing to discuss such
an agenda a few years ago, said Musungu. Nevertheless there was
difficult work ahead, including in how to put in elements of the
development philosophy in on-going WIPO negotiations on proposed
treaties on the table, such as the substantive patent law treaty (SPLT)
and the broadcasting treaty.
Musungu also warned that there could be more pressures put on developing
countries. For example, at a recent meeting the developed countries had
considered how to take forward the SPLT and the patents cooperation
treaty either inside WIPO or outside of it (if they could not get their
way in WIPO).
This gave a signal that they do not need WIPO to achieve their goals,
and this message may be designed to get the developing countries to get
in line (with the views of the developed countries) at WIPO.
Other diplomats and participants also expressed concern that TRIPS-plus
and WIPO-plus provisions have been included in bilateral and regional
trade agreements that developed countries have concluded or are
negotiating with developing countries. Thus it is not sufficient to
focus only on developments at international fora like WIPO and WTO.
Participants debated whether it was sufficient to think of access to
knowledge only in terms of expanding exceptions and limitations to
existing copyright and patent laws. Such an approach would implicitly
recognize that IPRs are the main rights whilst some exceptions are then
provided for consumer and public rights.
It was proposed by several participants that a treaty on access to
knowledge should be based on the human rights model, in which access of
knowledge is acknowledged as a human right, that this right is primary,
and the rights to holders of copyrights or patents are seen as secondary
or exceptions, and should thus be limited and in ways that would not
threaten the primary human rights.
Participants said that on the other hand, to promote access to
knowledge, it was also useful to expand exceptions and limitations in
existing IP regimes, to reform these regimes in the meanwhile, and thus
bring about more balance within them in favour of the public interest.
Both approaches could be adopted simultaneously, many participants
In a session on exceptions and limitations to copyright, representatives
of international and United States library associations, said that many
librarians had been concerned about the effects of intellectual property
protection on access to information and knowledge.
The librarians have also been actively engaged in attempts to expand the
exceptions to copyright for libraries and educational institutions and
An American Library Association representative introduced a list of
"Library-related principles for the international development agenda of
WIPO." The principles, developed in December 2004, had been
endorsed by the International Federation of Library Associations,
American Library Association, American Association of Law Libraries,
Association of Research Libraries, Medical Library Association and
Special Libaries Association.
The principles were prepared for use at discussions at WIPO concerning
the impact of IP protection on economic development and the significance
of copyright exceptions for libraries, educational institutions and the
The principles are listed under four goals. Goal 1 is a robust and
growing public domain to provide new opportunities for creativity,
research and scholarship. Principles under this include that all works
created by government authorities should be in the public domain;
published works resulting from government-funded research should be
publicly available at no charge; and facts and other public domain
materials and works lacking in creativity should not be subject to
copyright protection. Also, consistent with the Berne Convention, the
term of copyright should be the life of the author plus 50 years and the
terms should not be extended retroactively.
Goal 2 is effective library programmes and services as a means of
advancing knowledge. Principles include that a library may make copies
of works in its collection for purposes of preservation or to migrate
content to a new format; a work acquired by a library may be lent to
others without further transaction fees to be paid by the library, and
may be made available over a network in support of classroom teaching.
Also, a library or educational institution may make copies of a work for
classroom teaching; a library may convert material from one format to
another to make it accessible to persons with disabilities, and can make
copies of works still in copyright but not currently the subject of
commercial exploitation (to support preservation, education or
Goal 3 is high levels of creativity and technological progress resulting
from individual research and study. Principles include that copyright
laws should not inhibit technology development where the technology has
substantial non-infringing uses; copying of individual items for or by
individual users should be permitted for personal research and study;
and it is permissible to circumvent a technological protection measure
for the purpose of making a non-infringing use of a work.
Goal 4 is harmonisation of copyright. Principles include that the goals
and policies in the document should not be over-ridden by other
bilateral or multilateral agreements; and these goals and policies are
important statements of national and international principle and should
not be varied by contract.
The meeting will discuss several more aspects of and proposals on
exceptions to copyright and patents.
Marco Ciurcina <ciurcina a studiolegale.it>
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