World Intellectual Property Organization (WIPO)

Resurgence and the Development Agenda

Christopher May

• Publisher: Routledge
• Year: 2006
• Print ISBN: 9780415358002
• eBook ISBN: 9781134246502
• Topic: Law
• Subtopic: Intellectual Property Law
• Index: Law

Covering the World Intellectual Property Organization, this volume introduces a much ignored element of the contemporary structure of global governance to scholars of international political economy.

Christopher May discusses:

• how the World Intellectual Property Organization works, its antecedents and history
• the debates about the role and justification of intellectual property
• the role of WIPO within contemporary global politics
• the key elements of its relations with the World Trade Organization
• the Agreement on Trade Related Aspects of Intellectual Property Rights.

The analysis then examines the recent political economy of the organization and argues that far from being the neutral or technical agency that it often presents itself as, the WIPO is highly politicized and acts to socialize policy makers and civil servants into a specific view of intellectual property. However, the recent proposal to establish a Development Agenda at the WIPO is an important development, and the book concludes by examining the problems which have promoted this agenda, suggesting that these reforms of the WIPO should be welcomed.

The World Intellectual Property Organization is a clear and accessible volume that will confirm the WIPO as one of the global institutions which any student of global governance must understand.

1 Intellectual Property

The World Intellectual Property Organization (WIPO) is one of the least discussed of the major international organizations in International Political Economy analyses. While sometimes mentioned in passing, most political economic analysis of the contemporary global system focuses on better known organizations such as the World Trade Organization (WTO) or the World Bank. For instance, critical treatments of global governance have little to say about the WIPO,¹ while Anne-Marie Slaughter only mentions the organization in passing in her influential discussion of international governmental networks.² Likewise more general treatments of the field sometimes mention the WIPO, but none have accorded the organization any extended attention.³ Thus, since its establishment in 1970, and despite having been a specialized agency of the United Nations (UN) since 1974, international political economists have shown little interest in the WIPO.

This is all the more surprising as in the last decades, the political economy of intellectual property has moved from the margins to a much more central position in the study of global politics. The “problem” of intellectual property is no longer regarded as merely a technical issue of interest only to lawyers and specialist policy analysts. The relative inattention to the WIPO may reveal a tacit acceptance of its own public depiction of itself as merely a technical agency. However, the WIPO is a highly politicized organization whose role in the contemporary global political economy requires more thorough analytical attention.

Many commentators in the media and in universities have argued that the emergence of a “new economy,” or a new “information age,” has accorded such importance to the commodification of knowledge and information that it is hardly surprising that the political economy of intellectual property should be considered a more mainstream concern than it was perhaps twenty years ago. Although some of the claims for a wholesale social revolution should be discounted,⁴ nevertheless there can be little doubt that the mechanisms for establishing property rights over intellectual resources are more widely recognized now than they were in the recent past. Furthermore, these technological shifts have produced a widespread concern about the extent of unauthorized copying of new digital products, most obviously in the music and software industries.⁵ This concern has been expressed through high-profile campaigns against “piracy” and increasingly draconian punishments for infringers of intellectual property rights (IPRs).

Equally, high-profile disputes about access to AIDS-related medicines, and access to information over the Internet, as well as many people’s personal experiences of the actions of copyright holders have encouraged political activists and academic analysts to recognize the importance of intellectual property. Throughout the world music lovers have been tempted to download music from the Internet, only to find that many of the early services such as Napster were actually illegal, while health activists have been outraged by the use of pharmaceutical patents to effectively restrict access to life-saving medicines. However, while these and other examples have encouraged a more forthright engagement with the WIPO in the global advocacy community, this has been much less evident in academic analysis.

One of the key reasons for the heightened profile of intellectual property in global politics is that since 1995 intellectual property rights have been subject to the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement overseen by the WTO. While this agreement does not completely determine national legislation regarding patents, copyrights, trademarks and other intellectual properties, for members of the WTO to be TRIPs-compliant their domestic intellectual property law must support the protections and rights that are laid out in TRIPs’ 73 articles. The agreement represents an undertaking to uphold certain standards of protection for IPRs and to provide legal mechanisms for their enforcement. Perhaps most importantly, for the first time a multilateral trade treaty has required not merely changes in the manner in which imports and exports are regulated at national borders but has also required significant undertakings as regards national legislation for non-internationally traded products.

Prior to 1995, there were long-standing multilateral treaties in place regarding the international recognition and protection of intellectual property, overseen by the WIPO. Unfortunately, these were widely regarded as essentially toothless in the face of “piracy” and the frequent disregard for the protection of non-nationals’ intellectual property outside the most developed countries, and even sometimes between them. The US government alongside its allies in the European Union believed that there were clear advantages to be gained by having a tougher multilateral enforcement mechanism. Additionally, linking IPR-related issues to the international trade regime by moving their regulation into the new WTO, at the expense of the WIPO’s regulatory competence, US and EU negotiators felt that they were more likely to gain agreements to their advantage.⁶ Subsequently the WIPO has struggled to re-establish its role in the increasingly global realm of intellectual property governance, and while not having regained its earlier policy dominance the organization has managed to remain intimately connected with the global governance of intellectual property.

One of the most interesting, yet under-analyzed issues in contemporary global governance is how the WIPO has fought long and hard to retain its position in the international regulation of IPRs. Moreover, despite the abundant evidence of the organization’s clear political and normative agenda, the WIPO has also managed to maintain the external perception of it as merely a technical agency, and has thus been largely ignored even by the critics of contemporary global governance arrangements. This book is intended to reveal that this lack of attention is a serious shortfall in analytical attention. In other words, the WIPO, like other elements of the current regime of global governance, is highly politicized and must be (re)inserted into any account of global governance.

The origins of the WIPO itself can be traced back to the late nineteenth century and the discussions that established the first international conventions to govern the international trade in products covered by national patents and copyrights. Therefore, although only established in 1970 by a convention that had been signed in Stockholm three years earlier, the organization’s history really commences with the 1883 Paris Convention for the Protection of Industrial Property, and the 1886 Berne Convention for the Protection of Literary and Artistic Works. Both conventions established secretariats and these were united in 1893 to form an organization that functioned under various names until it was formally consolidated in 1970 at the WIPO. The organization has a good claim to extensive experience, and considerable expertise built up over many years, in the international governance of intellectual property. It is this experience and expertise that has ensured that the WIPO has been able to avoid being completely side-stepped by the actions of major governments at the WTO.

In 2004 a number of developing country members of the WIPO, supported by a group of international non-governmental organizations (INGOs) sought to establish a more explicitly development-oriented policy agenda for the organization. This attempt to shift the WIPO’s priorities is underpinned by the argument that as the WIPO is a specialized agency of the UN it should share the UN’s focus on global developmental issues rather than a more technical focus on the governance and protection of IPRs. At the center of the Development Agenda is a critique of the WIPO that suggests it represents a narrowly focussed set of political economic interests that seek to expand the realm of commodified knowledge and information for their own commercial advantage. This book is intended to offer a context for such debates through an examination of the history of the organization, the way it works and its impact on the global governance of IPRs.

Within the study of global governance and more generally across the myriad disciplines of the social sciences that might have some interest in the questions around intellectual property, there sometimes seems to be some confusion about what exactly intellectual property and IPRs actually are. Therefore before examining the various aspects of the political economy of the WIPO it is as well to be clear, at least in a general sense, about the characteristics of IPRs.

A Brief Primer on Intellectual Property Rights: Forms and Functions

For purposes of clarity this section briefly sets out some of the basic issues for readers who are relatively new to the subject, and who may not be sure exactly what the various forms of intellectual property are. This section can easily be skipped by those who are already familiar with the characteristics, purposes and justifications entailed in making knowledge and information property.

What is intellectual property?

When knowledge becomes subject to ownership, IPRs express the legal benefits of ownership, most importantly: the ability to charge rent for use; to receive compensation for loss; and to gather payment for transfer. Intellectual property rights are sub-divided into a number of groups, of which two generate most discussion: industrial intellectual property (patents) and literary or artistic intellectual property (copyrights). Conventionally, the difference between patents and copyrights is presented as being between a patent’s protection of an idea, and copyright’s protection of the expression of an idea, and although this simple distinction has become increasingly difficult to draw for a number of reasons, it still holds some use as a starting point. Within the law of intellectual property, the balance between private rewards and the public interest in having relatively unrestricted access to knowledge and/or information has generally been traditionally expressed through time limits on IPRs, which is to say unlike material property, IPRs are formally only temporary rights. Once their time has expired the knowledge enters the public realm of freely available material that can be used without authorization by, or payment to, an owner.

For patents the knowledge which is to be registered and thus made property should be applicable in industry. To be patentable an idea must be:

• new, not already in the public domain or the subject of a previous patent;
• non-obvious, it should not be common-sense to any accomplished practitioner in the field who having been asked to solve a particular practical problem would see this solution immediately. This is to say, it should not be self-evident using available skills or technologies;
• useful, or applicable in industry, it must have a stated function, and could immediately be produced to fulfill this function.

For instance, a new device to drive nails into wood would be patentable, provided that it fulfilled the above criteria. However, something that was a discovery would not be; discoveries are not new as they existed prior to their discovery. Thus the fact that a heavier hammer will drive nails into wood more quickly is a product of the “natural” relationship between mass, acceleration and the exchange of energy; these are laws of nature and thus not amenable to patenting. The classic examples of such non-patentable items would be mathematical formulae or natural compounds. However, in both these cases, the former relating to computer software, the latter to biotechnology, there has been considerable debate about patents that seem to have awarded property rights over discoveries rather than inventions.

Nevertheless, in general, and following the harmonization of national legislation in the TRIPs agreement, if the above three conditions are fulfilled then an idea can be patented in any of the members of the WTO. The patent is lodged at the national or regional patent office, which for an agreed fee will allow others access to the patented knowledge as expressed in the patent document. Perhaps more importantly the office will also police and facilitate the punishment of unauthorized usage. Patents are an institutionalized bargain between the state and the inventor. The state agrees to ensure the inventor is paid for their idea when others use it, for the term of the patent, while the inventor allows the state to lodge the idea in its public records to facilitate wider dissemination of the advance.

Unlike patent, copyright is concerned with the form of knowledge and information that would normally be termed, “literary and artistic works.” This is usually expressed in words, symbols, music, pictures, three-dimensional objects, or some combination of these different forms. Copyright therefore covers: literary works (fiction and nonfiction); musical works (of all sorts); artistic works (of two- and threedimensional form and importantly irrespective of content – from “pure art” and advertising to amateur drawings and your child’s doodles); maps; technical drawings; photography; audio-visual works (including cinematic works, video and forms of multi-media); and audio recordings. In some jurisdictions this may stretch to broadcasts and also typographical arrangements of publications. However, the underlying ideas, the plot, the conjunction of colors do not receive protection, only the specific expression attracts copyright.

Copyright is meant to ensure that what is protected should not be reproduced without the express permission of the creator (or the owner of the copyright, which may have been legally transferred to another party by the creator). This is often limited to an economic right, where the creator (or copyright owner) is legally entitled to a share of any return that is earned by the utilization or reproduction of the copyrighted knowledge. In some jurisdictions however, principally in continental Europe, there is an additional moral right not to have work tampered with or misrepresented. In all cases, failure to agree terms prior to the act of reproduction or duplication may result in any income being awarded to the original copyright holder by the court if an infringement is deemed to have taken place. Unlike patents however, copyright resides in the work from the moment of creation; all that is required is that the creator can prove that any supposed infringement is a reproduction of the original work, in terms of content, and that it was the product of an intended action of copying. Thus, for instance, the Verve, having used an unauthorized music sample, now pay all the royalties from their biggest hit single, “Bittersweet Symphony”, to the Rolling Stones in settlement of a copyright court case.

Trademarks serve to distinguish the products of one company from another and can be made up of one or more distinctive words, letters, numbers, drawings or pictures, emblems or other graphic representations. Generally trademarks need to be registered, and in the act of registration a check is carried out to ensure that there are no other companies currently registering the same word, symbol or other representation as a trademark in the sector of the economy nominated by the registering company. A history of use of a trademark may establish its viability and support its subsequent legal recognition. Thus, a particular trademark is unlikely to succeed in being registered if it is too similar to, or liable to cause confusion with, a trademark already registered by another company (referred to as “passing off”). Neither will it be able to enjoy protection if the term or symbol is already in common use. In some jurisdictions the outward manifestation of packaging, provided that it is not a form necessarily dictated by function, may also be subject to trademark status (of which the most famous case is the Coke bottle).

There are other sorts of intellectual property, from process patents (which are like patents but cover processes as opposed to actual machines) to geographical indicators (such as “champagne”), but these share the key characteristics noted above; they code a form of information or knowledge as ownable property. However, in the case of geographical indicators this is more like a collective trademark: the indicator is limited in use to a defined group using a specified process, traditional to, or identified with, a specific locale. No-one “owns” a geographical indicator as such, but those that benefit from its recognition can seek protection from those outside the area trying to “pass off” their products as the same as those produced in the area. For instance, recent disputes have involved the processes that make ham “Parma ham,” and what exactly makes a Melton Mowbray pie distinctive. Geographical indicators, as this suggests, are often although not exclusively concerned with food and drink markets.

It is sometimes also useful to think of trade secrets as intellectual property. Although a form which is not made public, trade secrets allow the control or ownership of knowledge. In one way the trade secret is the ultimate private knowledge property. However, while in some celebrated cases a trade secret is relied on to maintain a competitive advantage (and again the example of Coke is apposite, along with Kentucky Fried Chicken’s “secret blend of herbs and spices”), in the main those who rely on knowledge as a resource adopt an intellectual property approach to protection, rather than keeping such knowledge completely secret. Indeed, for the knowledge industries it would be counter-productive, impossible even, to function on the basis of knowledge being secret, given the importance of reproduction and transfer of that knowledge to generate income and profit.

Intellectual property constructs a balance between public availability and private benefit which allows wider access to knowledge and information than trade secrecy. However, this availability is only within specific legal limits constructed by intellectual property. Indeed, where governments have recognized that despite the legal system imposed, this balance is not well served by specific IPRs being recognized, they have intervened to compulsorily license the invention or process or product for the wider social good. This state appropriation of property has historically usually only been used in extreme circumstances, but has remained a potential policy intervention, for patents especially, in most jurisdictions. The question of compulsory license remains highly contentious, as the debates about the use of generic substitutes for patented AIDS drugs in the developing world reveal.

Why is intellectual property needed?

Most importantly, while they remain active (that is, while they are within their time limits), IPRs formally construct scarcity of use where none necessarily exists. Knowledge and information, unlike material things, are not necessarily rivalrous; co-incident usage seldom detracts from utility. Most of the time knowledge, before it is made into property, does not exhibit the characteristics of material things. Take the example of a hammer as material property; if I own a hammer and you and I would both like to use it, our utility is compromised by sharing use. I cannot use the hammer while you are, you cannot while I am, our intended use is rival. Thus, for you to also use my hammer, either you have to accept a compromised utility, relying on my goodwill to allow you to use it when I am not, or you must buy another hammer. The hammer is scarce. However, the idea of building something with hammer and nails is not scarce. If I instruct you in the art of simple construction, once that knowledge has been imparted, your use of that information has no effect on my own ability to use the knowledge at the same time, there is no compromise to my utility. We may be fighting over whose turn it is to use the hammer, but we do not have to argue over whose turn it is to use the idea of hammering a nail into a joint; our use of the idea of cabinet construction is non-rival. Ideas, knowledge and information are generally non-rivalrous.

To be sure, if you and I were both cabinet makers, then instructing you in cabinet construction might lead you to compete for my customers, possibly reducing my income. But this might also lead us to say that any secrec...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Foreword
• Acknowledgements
• List of Abbreviations
• 1 Intellectual Property
• 2 The WIPO’s Antecedents and History
• 3 How the WIPO works
• 4 Global Governance and Intellectual Property
• 5 The “Problem” with the WIPO
• 6 The WIPO’s Rise, Fall and Comeback
• Appendices
• Notes
• Further Reading