Tuesday, 15 April 2014

Don't you dare blame TRIPS again - Max Planck Institute declares

Although this Leo has an inherent bias towards another, he must say that any IP research by Max Planck Institute (MPI) does carry enormous weight across Europe when unleashed. (Also see MPI's work on European collective rights management and here + here on European trade marks). 

You may have already seen the IPKat's post, but it seems that this blog might be the first to lead you to the actual text of the research or Declaration (as they prefer to call it). You can read the summary here or just dive straight into it here. The Declaration document is neatly laid out and would serve as a reference point for national IP policymakers or those working with developing countries (including the least-developed) on IP law reform.

To this Leo, instructive in MPI's research are as follows:

(1) IP problems are not exclusive to developing countries
(2) Make effective use of the TRIPS flexibilities (especially, compulsory licensing) but challenges posed by trade deals are recognised
(3) States must regularly revisit IP laws and are allowed to implement TRIPS taking their socio-economic interests into account (e.g. have a look at this OECD report in 2004 titled: Patents and Innovation: Trends and Policy Challenges)

This Leo cannot remember the number of times that he has cautiously hinted on MPI's key observation, regarding the TRIPS flexibilities, in his posts (maybe, here, here, here, here or here. Other Afro-IP posts pointing to this observation include here, here, here, here and here). To his young mind, IP discourse (in relation to developing countries and like in all similar issues) have somewhat been polarised - with each group legitimately fostering their respective interests. The middle ground, albeit existing and relevant, seemed not interesting enough. (Says Afro Leo: "MPI should tread carefully before the 'IP maximalist' mark is firmly stamped on its forehead. That stamp is easily and readily available for use")

One cannot honestly say that making effective use of TRIPS flexibilities is a panacea. However, it is a meaningful step towards mitigating the identified problems we have at hand; no? Joseph E. Stiglitz (an advocate of pro-development IP regimeargues that poorly designed IPR regimes is a major problem; there should be a 're-think' of patents; and that TRIPS still remains an unbalanced global regime - with the U.S, in particular, foisting far stronger rules on others (see herehere and here). 

China and India are good examples of countries which have played the IPR regime game quite well to get to where they are today. African countries may well have woken up too late; the hope is that they can still readjust. To do so may require growing a backbone - albeit that most neither have a choice nor bargaining power. In an ideal world, it may even be better to call for the suspension of patent law in order to allow developing countries to emerge on a reasonable level playing field. That is not the world we live in and,  how can one determine what is a level playing field? Moreover, what would be the impact on creative individuals or businesses in terms of competing with one another and consequentially, creating IP? There are no easy answers or solutions.

He prefers to sit on the fence on these matters (maybe, call him an IP minimalist). This is what he believes in: the people in most, if not all, African countries are capable of creating all things which (generally speaking) the prevailing IP regimes are designed to protect.

Over to you for your thoughts.

MPI's Proposals for Amendment of TRIPS are here
Tired of IP maximalists? See them here, here and here

1 comment:

Caroline Ncube said...

I echo Kingsley's thoughts on the Patent Declaration and notice, with great interest, that some of its observations are similar to a report released by UNDP in October 2013 entitled 'Using Law to Accelerate Treatment Access in South Africa' which is available

The UNDP report's point of departure would be the prerogative of differentiation emphasised by the Patent Declaration. Once pharmaceuticals are identified as key due to treatment access issues, a state would then be prudent to examine which flexibilities may be leveraged to enhance such access. Both the Declaration and the UNDP report consider compulsory licenses, disclosure in patent applications, exceptions, enforcement and remedies.