The arena of international intellectual property and the WIPO Development Agenda is one I enter with considerable trepidation, because it is complex and shrouded in a language all its own. Fortunately, one of Duke’s own law professor’s, Jerome Reichman, is an always reliable guide, and I read with careful attention his article “Intellectual Property in the Twenty-First Century: Will Developing Countries Lead or Follow?” The article is itself technical and complex, but it is rewarding for its message to the developing world that they have a choice as they create or refine IP laws for their own best interests. Reichman argues persuasively that simply replicating the high-protectionist regimes in place in the U.S. and the European Union is not the only, or the best, option for countries trying to develop their own economies.
Reichman’s article is available here, on the web site for the Houston Law Review (in vol. 46, number 4).
The danger, of course, is that when levels of IP protection are set too high they can inhibit innovation and growth. Established technologies and industries can be protected to the point of becoming lazy, while new innovation and creative development can be stifled. Reichman cites several examples of this trend, in a general way, when he describes patent “thickets,” “blocking” strategies that prevent improvements and how overlapping IP claims can inhibit broad use of “platform technologies” for innovation. Anyone interested in a specific example of how patent protection can inhibit needed scientific development should read this blog post about hoarding of biological samples because of fears that patented drugs will be developed from them and increase the cost of health care for the developing countries that hold the samples.
Reichman proposes some specific strategies that developing countries, particularly that group of developing nations with very fast-growing economies that are known as BRIC (Brazil, Russia, India & China) countries, could follow to prevent these problems and to foster innovation and growth. In the patent arena he suggests several places where compulsory licenses would be productive – for secondary research, especially when it can offer an improvement on the original technology, and for third party suppliers whose involvement is necessary to supply a particular market in the public interest. He also advocates some doctrines that can be incorporated into IP law that would encourage growth. Here, for example, he suggests an “essential facilities” doctrine in patent law that would make it possible to “pool” overlapping patents when access to a vital technological platform for research is at stake. In copyright, he suggests that the idea/expression distinction be codified in national laws and that a broad, clear research exception be included, as well as a more flexible exception like the U.S. fair use provision.
In general, Reichman’s suggestions about how a combination of compulsory licenses and “liability rules” could be used to give IP law the flexibility to really encourage research and development point in a positive direction for the developing world. He also acknowledges that these countries will have to stand up against the pressure brought on them by the U.S and the E.U. to adopt imitative regimes of high-protectionist rules that, he argues, would ultimately be counter-productive.
As I read this article, I kept thinking about the concern expressed by politicians and the media about the high level of U.S. debt held by China and the general sense that these “BRIC” countries are mounting a serious challenge to the dominant place the U.S. has held in the world economy. If some of these fast-growing economies were to adopt Reichman’s recommendations, that competition could increase dramatically. Indeed, U.S. dominance might find itself “hit with a BRIC.” Perhaps the best way for the U.S. to stay competitive with the world is not to try a foist our regime, which seems to be counter-productive in the most literal sense, on others, but to move ourselves toward a more growth-oriented system of IP protections, limitations and exceptions.