27-06-2012, 12:56 PM
Commission on Intellectual Property Rights
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INTRODUCTION
The Millennium Development Goals recognise the crucial importance of reducing poverty and
hunger, improving health and education, and ensuring environmental sustainability. The
international community has set itself the target of reducing the proportion of people in poverty
by half by 2015, along with associated specific targets for improving health and education and
environmental sustainability.
It is estimated that in 1999 nearly 1.2 billion people lived on less than $1 a day, and nearly 2.8 billion
people on less than $2 per day.1 About 65% of these are in South and East Asia, and a further 25%
in sub-Saharan Africa. There were an estimated 3 million deaths from HIV/AIDS in 2001, 2.3 million
of them in sub-Saharan Africa.2 Tuberculosis (TB) accounts for nearly 1.7 million deaths worldwide.3
On present trends, there will be 10.2 million new cases in 2005.4 There are also over 1 million deaths
annually from malaria.5 In 1999 there were still 120 million children not in primary school. Sub-
Saharan Africa has the lowest current enrolment rate at 60%.6
It is our task to consider whether and how intellectual property rights (IPRs) could play a role in
helping the world meet these targets – in particular by reducing poverty, helping to combat
disease, improving the health of mothers and children, enhancing access to education and
contributing to sustainable development. It is also our task to consider whether and how they
present obstacles to meeting those targets and, if so, how those obstacles can be removed.
BACKGROUND
Over the last twenty years or so there has been an unprecedented increase in the level, scope,
territorial extent and role of IP right protection.13 Manifestations of this include:
• The patenting of living things and materials found in nature, as opposed to man-made products
and processes more readily recognisable to the layman as inventions
• The modification of protection regimes to accommodate new technologies (particularly
biotechnology and information technology), such as the EU Biotechnology Directive14 or the
Digital Millennium Copyright Act (DMCA) in the United States (US)
• The extension of protection into new areas such as software and business methods, and the
adoption in some countries of new sui generis regimes for semiconductors and databases
• A new emphasis on the protection of new knowledge and technologies produced in the public sector
• The focus on the relationship between IP protection and traditional knowledge,15 folklore and
genetic resources
• The geographical extension of minimum standards for IP protection through the TRIPS agreement
(see Box O.1), and of higher standards through bilateral and regional trade and investment
agreements
• The widening of exclusive rights, extension of the duration of protection, and strengthening of
enforcement mechanisms.
OUR TASK
We take the setting up of our Commission to be evidence that the British government is sensitive
to these concerns. In that light our fundamental task is to consider whether the rules and
institutions of IP protection as they have evolved to date can contribute to development and the
reduction of poverty in developing countries.
Our starting point is that some IP protection is likely to be appropriate at some stage for developing
countries, as it has been historically for developed countries. There is no doubt that it can make an
important contribution to research and innovation in developed countries, particularly in industries
such as pharmaceuticals and chemicals. The system provides the incentive for individuals and
companies to invent and develop new technologies that may benefit society. But incentives work
differently according to whether there is a capacity to respond to them.
The Nature of Intellectual Property Rights
Some see IP rights principally as economic or commercial rights, and others as akin to political or
human rights. The TRIPS agreement treats them in the former sense, while recognising the need to
strike a balance between the rights of inventors and creators to protection, and the rights of users
of technology (Article 7 of TRIPS). The Universal Declaration of Human Rights has a broader
definition recognising “the right to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author”, balanced by “the
right…to share in scientific advancement and its benefits.”23 The crucial issue is to reconcile the
public interest in accessing new knowledge and the products of new knowledge, with the public
interest in stimulating invention and creation which produces the new knowledge and products on
which material and cultural progress may depend.
Equitable Sharing of Benefits and Costs
The immediate impact of intellectual property protection is to benefit financially those who have
knowledge and inventive power, and to increase the costs of access to those without. This is
obviously relevant to the distribution of gains between developed and developing societies. Even
if there were economic gains to the world as a whole from extending protection, on which there
is some debate, the distributional consequences for income may not accord with our sense of
equity. In the majority of developing countries, with weak scientific and technical infrastructures,
the benefits in the form of the stimulus to domestic innovation will be muted, but they will still face
the costs arising from the protection of (mainly foreign) technologies. Thus the costs and the
benefits of the system as a whole may not be fairly distributed.