More than a decade after the conclusion of the Uruguay Round and the implementation of the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a healthy debate continues about intellectual property rights, economic development and IPR protection and enforcement. In some forums, the debate occurs as if economic development and IPR enforcement are mutually exclusive.
Although most IPR owners, i.e., the business entities that create, develop, manufacture and offer new and better products to global consumers, may be unaware of the debate, this debate has important implications for the business community. The fact that this debate is occurring at all is troublesome. Those who support economic development by way of weakened IPR protection and enforcement are threatening the ability of businesses, including their domestic business communities, to protect their investments.
In the July-August 2005 issue of this publication, an essay appeared that encouraged the United States, Japan and the European Union to look internally at their policies on education as a way to counter the growing concerns about the competitive threat of emerging economies such as China and India. In that essay, the developed countries were encouraged to look internally because they can control their domestic agendas, policy decisions and implementation, whereas they have no control in foreign countries.
When hearing advocates for a stronger development agenda with lessened emphasis on IPR protection, one wonders if this is a way of attempting to influence foreign governments because of an inability to effect change domestically.
When countries begin espousing the need to emphasize development and weaken systems to protect the private sector’s ability to safeguard their investments, governments that oppose such a weakening of IPR protection regimes should not shrink from posing difficult questions of their trading partners. Some of the difficult questions relate to the extent to which countries that oppose stronger IPR protection have neglected their duties in improving their own economic systems. Have governments, i.e., their policy-makers and officials who are calling for weaker protection, ignored the implementation of new laws, regulations, and programmes necessary to promote their domestic business sector, i.e., their own domestic economic development? Has it been easier to accuse the developed countries of heavy handedness in imposing strong IPR standards rather than implementing a domestic education programmes to help their industries and business leaders understand how they, too, might benefit from the new global IPR system? Or, are there other internal issues or obstacles that prevent governments from making difficult decisions to promote domestic economic development?
It is always easier to look outward and blame others, in this case other countries and governments, than to accept one’s shortcomings. Just as the developed countries should take steps through internal policies to prepare for the challenging and competitive world that is emerging that will test their abilities to continue creating and developing new products, developing countries, rather than looking to weaken the protection system, should look at ways to internally promote economic development and demonstrate how those developments can be protected through strong and robust IPR systems.
This debate, which has arisen within the global IP intergovernmental organization—the World Intellectual Property Organization, raises an interesting question for the advocates of development favouring less protection. Is this a position adopted by government officials with substantial support from their domestic businesses and corporations that are investing in promoting trademarks, creating copyrighted material and conducting research to obtain patents? It is hard to imagine that businesses and corporations, if they truly understand the role of IPR and the possible financial returns from developing and exploiting their IPR assets, would provide significant support to their governments taking a position of weakening the protection of the very assets they are investing in and strengthening in order to compete.
Another question that arises in listening to this debate is whether those government officials who aggressively advocate economic development in the absence of strong IPR protection have spent significant time in the private sector. Given the normal career course in many countries, most government officials are career government officials with little or no private sector experience. Thus, one wonders whether the advocates of weak IPR protection can appreciate the benefits of a strong IPR enforcement system.
Indeed, some aspects of the current debate seem to assume that economic development and IPR protection can be separated. On the contrary, economic development, which relies so much on the creative and innovative actions of the private sector, should be viewed as so intertwined with IPR protection that efforts to separate the two could be disastrous to economic development.
To some extent, the advocates of development who view strong IPR protection as an obstacle to economic development and would weaken protection, are likely reacting to the perception that only the businesses of developed countries reap the rewards of high levels of IPR protection. This viewpoint is a disservice to the private sector in those countries whose governments advocate development over protection. The position tends to dismiss the efforts of domestic businesses that hope to share in the rewards of IPR creation and commercial development and success.
It is unlikely that the proponents of development, believing that there has been too much emphasis on protection, have gone through an exercise to try and identify commercial pursuits and enterprises void of IPR. These proponents of the development/less protection position should explain who they believe should be the development catalysts in their national economies. Do they expect economic development to be spurred by government spending, i.e., investment in select industries whereby little or no ownership of IPR will be claimed? Or, do these proponents expect a significant private sector involvement and investment in national economic development through research, development and launch of new products without seeking IPR protections, i.e., ignoring and foregoing the very industrial property offices that have been established to protect the investments made? Many factors contribute to economic development and IPR should be listed as a major factor—from some of the most basic commercial pursuits to the most complicated and sophisticated.
To some degree, the development versus protection debate reflects a backlash against IPR, but based on what facts? The international community should not succumb to advocates of less protection unless they can demonstrate that providing an economic environment that includes strong IPR protection dampens economic development. It is unfortunate that strong IPR provisions are being used as an excuse for poor development results, especially when many factors contribute to poor development results.
The development versus protection debate reflects, to some extent, dissatisfaction with the rate of economic development. Rather than advocating for weaker protection regimes, the governments that are dissatisfied with the level of economic development might consider stepping back and re-assessing the type of assistance programmes that have been provided by intergovernmental organisations, developed countries and industry to raise the level of knowledge and awareness of IPR. Ultimately, however, these governments that seek development at the expense of protection should also conduct an internal examination of the programmes they deliver to their business community and what they are doing to promote policies and practices that encourage the domestic private sector to take full advantage of IPR and to reap the financial rewards these assets may provide.
Finally, the business community, especially those industries and companies that have benefited from strong IPR systems and contribute to economic development, needs to be part of the educational discussion that explains the IPR contributions to economic development. Moreover, in order to counter the negativism of some toward IPR, the business sector beneficiaries should be involved in developing and delivering new ways to promote IPR.
 Mr. Trainer is president of the Global Intellectual Property Strategy Center, P.C., in Washington, D.C. www.globalipsc.com.