EU Intellectual Property Rights

Introduction

Should the national and regional intellectual property systems of the world be harmonized so that the rules governing intellectual property protection standards and enforcement are identical everywhere? Or should differentiation be the norm so that each jurisdiction tailors its intellectual property systems according to its perceived economic and social welfare interests however far these systems may differ from those of, say, the United States or the European Community? This paper does not attempt to answer the question of whether strong[1], medium or weak intellectual property standards of protection and enforcement are best for countries at particular levels of economic and social advancement. Several other studies have sought to deal with this matter[2] . The question this paper does seek to address is that of how much intellectual property protection developing countries should provide relative to other countries, particularly those that are wealthiness.

History does not prove that differentiation is better than harmonization. Indeed, it is probably erroneous to expect the past to tell us anything conclusive about the present, let alone predict the future. Neither does this paper claim that strong intellectual property protection is not necessarily bad for poor countries, nor that weak protection or even no protection is bound to be better[3] . In any case, the geography of innovation and creativity does not fit at all well into the North–South separation of the world that is typically employed to differentiate the developed regions from the developing ones. In fact, even in the same country, one creative industry sector, such as music or feature film production, may thrive while another, such as pharmaceuticals, may lag far behind[4] . However, on the basis of the historical record, this paper casts doubt on the idea that harmonizing patent and copyright systems is a good thing in terms of narrowing the wealth gap between rich and poor countries [5].

The paper explains how the priority of achieving minimum standards of protection and enforcement of existing intellectual property rights has been superseded by that of global intellectual property harmonization for patents. It also identifies the strategies being adopted to accelerate and deepen these processes. The paper then aims to demonstrate that this is very important and raises very high economic stakes. Developing countries’ options to tailor their intellectual property rules to their development needs are being rapidly reduced if not eliminated, a situation which ought to be seen as extremely worrisome if not alarming.

Patent documents are one of the most comprehensive data sources on technology development. As such, they provide a unique source of information to analyze and monitor technological performance. Patent indicators are now used by companies and by policy and government agencies alike to assess technological progress on the level of regions, countries, domains, and even specific entities such as companies, universities and individual inventors.

The paper provides numerous instances of how today’s developed countries often ensured they had weaker intellectual property regimes than those of the technologically more advanced countries with which they were seeking to catch up. It highlights the significance of differences in national patent regulation. The conclusion considers the contemporary relevance for policymaking, bilateral negotiations, and intergovernmental deliberations on patent property

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1. ‘Strong’ is meant to refer to the extent of enforceability of the IP rights and to indicate the absence—or at least relative lack—of exceptions to patentability by subject matter or technological field.
2. See Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy. Report of the Commission on Intellectual Property Rights, Commission on Intellectual Property Rights, London, 2002; Graham Dutfield (lead author), Intellectual Property Rights: Implications for Development, United Nations Conference on Trade and Development (UNCTAD) and International Centre for Trade and Sustainable Development (ICTSD), Geneva, 2003. Both documents can be taken as supporting the view that international IP rules are too inflexible to accommodate the development needs of each country. For an alternative view see R. Sherwood, ‘Why a uniform intellectual property system makes sense for the world’, in Mitchel B. Wallerstein, Mary E. Mogee and Roberta A. Schoen (eds), Global Dimensions of Intellectual Property Rights in Science and Technology, National Academy Press, Washington, DC, 1993.
3. It is worth mentioning here that India’s film industry does not appear to have been disadvantaged by the fact that India had a copyright regime which was Berne Convention-compliant for much of the twentieth century.
4. One could also mention here that many developing countries are well-endowed in terms of traditional knowledge, innovations, technologies and cultural works and expressions.
5. For a very different analysis that comes to the same conclusions, see K. E. Maskus and J. H. Reichman, ‘The globalization of private knowledge goods and the privatization of global public goods’, Journal of International Economic Law, 7, 2, 2004, pp. 279–320.