Knowledge doctrines

By Sunita Narain
Published: Tuesday 15 October 2002

What has President George Bush's international strategy paper released this fortnight, have to do with the British government sponsored report of the Commission on Intellectual Property Rights? Nothing technically. The first is about us foreign policy, where the president has given his country a messianic role in making the world "not just safer but better". It declares that us must maintain its unprecedented -- and unequalled --strength and influence in the world and changes the foreign policy from deterrence and containment to dominance and first-strike. us national security strategy, he says, will be based on a " distinctly American internationalism that reflects the union of our values and our national interests ."

The second is about the global doctrine that protecting the rights of knowledge creators is essential to prosperity and international trade. The commission was set up by the British government to examine how this dogma of intellectual property can help or hinder developing countries. Its report, interestingly, questions the doctrine that patents are good for the poor. It argues that there is little evidence that a strong patent protection system will make poor countries a hotbed of innovation and industrial enterprise. As the normally staid British journal Economist put it, 'having a license to drive is little use without a car".

More importantly, the report says that intellectual property rights (ipr)-- seen by many as basic economic and commercial rights -- are granted by states for a limited time, whereas human rights are inalienable and universal. Therefore, describing this protection as "rights" should not be allowed to override the extra costs imposed on the developing countries, often at the expense of the necessities of life for poor people.

This said, what have the two reports to do with each other? A lot. Both are about the design of the international system and its underlying doctrine: Will they be driven by national self-interest or global "all" interest? While the Bush doctrine espouses a particular brand of internationalism, it is clear that this will be driven by self-interest. Many would argue this is not new and that foreign policy is all about protecting and pushing national interests. It would also be fair to say that the ipr regime is part of this self-interest doctrine as it has been perpetuated by the rich to protect their own.

The commission's report, on the other hand, would want us to believe that there is a larger public interest in which nations must decide. But it also believes the World Trade Organisation (wto) Agreement on Trade Related Aspects of Intellectual Property Rights (trips) has set the minimum agreement on the patent regime and that it would not be advisable to either replace it or to dismember it. It instead advises developing nations to innovatively use the latitude provided in the trips agreement in their best interest -- whether the provision of compulsory licensing to allow for essential drugs or using the flexibility to set strict standards for patentability. It is part of the unfortunate situation that the world finds itself in when it does not have the courage to seek to replace something, which everyone agrees is flawed, because what it could end up getting is even worse.

In many ways, it could be argued that what the commission really says is that developing countries must assert their own priorities and design their ipr strategies accordingly. It is also about national self-interest. But in this case, it is the self-interest of the poor and weak.

For instance, the report says that developing countries must not provide the patent protection for plants and animals, as it is allowed under trips. Instead, they should consider different forms of patent protection, in other words, a sui generis system. Nations must also innovate to protect traditional knowledge systems -- from digital libraries that record this knowledge for patent applications to use in their verification searches to legislating for disclosure of information in the patent application about the geographical source of the resource and knowledge.

But this is not enough. trips does not provide the right framework for traditional knowledge. Under trips, an invention can be patented provided it is new, involves an inventive step, and is capable of industrial application. Unfortunately, as traditional knowledge is invariably in the public domain, it has no protection or value under trips.

It is because of this that nascent legal frameworks for community iprs are exciting. For instance, the Costa Rican Biodiversity Act gives legal recognition to knowledge associated with traditional biological or cultural practices in the public domain, even without formal declaration. The more recent Peruvian act builds on this by recognising that knowledge in the public domain can be included in contracts. It also legislates that traditional knowledge in the public domain remains a trade secret of communities and puts the burden of proof on the agency, which uses this resource without consent.

If developing countries are serious about these legislations -- as serious as the us, when it seeks to push for tighter ipr regimes -- these new frameworks could provide the only real challenge to the formal knowledge system of the rich.

But this would demand the ability of the poor nations to seek and push for change. This is where the commission's report is the weakest. It puts the onus of change primarily on the poor, as it demands that they invent their own ways of managing their present and future development strategy. But when global institutions are driven by national self-interests of the rich, how will the views of the poor prevail? The Bush doctrine is about power of the rich. We should all learn this fast.

-- Sunita Narain

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