Wednesday 15 February 2012

Darren Olivier

African IP Summit short a development dimension?

Professor Mark Schultz, Southern Illinois University School of Law, has taken a stand on Afro-IP against the African IP Summit critics. Mark believes that the outrage is overstated, and that calls to postpone the conference reflect an ideologically rigid, anti-IP viewpoint. His comment is copied below.

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"I disagree with the criticism of the IP Summit for a variety of reasons, but I will stick to two essential points. As I jump in, I’ll note that I don’t have a “dog in this fight,” as they say in the part of the U.S. where I currently live. I'm not an organizer, I’m not on anybody’s payroll other than the law school where I teach, and I’m not invited to speak at the conference (although I’d love to visit Cape Town).

First, the criticism does not accurately reflect the entire substance of the Development Agenda. The Development Agenda was the result of compromise and consensus, and thus embodies a number of viewpoints as to how WIPO should address development issues. I think that the complaints of the portion of civil society represented by the KEI-led coalition focus on the parts of the Development Agenda that this coalition advocated and preferred throughout the talks. The views of this coalition do not reflect the entirety of Development Agenda.

Compare the preliminary agenda for the summit obtained by KEI with the Development Agenda itself. Since it’s not my blog, I will provide just a few examples.

Cluster A of the Development Agenda addresses Technical Assistance and Capacity Building. Cluster A is important; it accounts for 14 of the 45 recommendations. As an observer at several of the meetings where the Development Agenda was developed, I recall that technical assistance was quite important to a large portion of the delegates. It was my perception that many of the members of the African Group had a genuine interest in getting help to improve their national IP institutions and in using IP to promote local industries, rather than only to protect the IP of their wealthy trading partners. In my opinion, at key junctures in the talks, it was the African Group’s desire to secure technical assistance that kept talks going, serving as a bridge between more intransigent parties to the talks.

In any event, here are a few of the recommendations of the Development Agenda, matched to items from the conference:

Development Agenda Item Number 3: Increase human and financial allocation for technical assistance programs in WIPO for promoting a, inter alia, development-oriented intellectual property culture, with an emphasis on introducing intellectual property at different academic levels and on generating greater public awareness on intellectual property.” This recommendation embodies compromise, promoting both IP awareness and a “development-oriented intellectual property culture.”

Many conference agenda items follow this recommendation, promoting both IP awareness and a development orientation. Here are a couple of representative ones:

• Using IP to Promote African Economic Development, Production and Trade

• A Discussion on IP Awareness in Africa and Possible Methods for Increasing IP Awareness in the Continent

Development Agenda Item Number 10: “To assist Member States to develop and improve national intellectual property institutional capacity through further development of infrastructure and other facilities with a view to making national intellectual property institutions more efficient and promote fair balance between intellectual property protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with intellectual property.” Once again, a bit of compromise—help with institution building, while ensuring a “fair balance” between IP protection and the public interest.

These conference agenda items seem relevant:
• Building African IP Administration Office Infrastructure and Increasing Capacity to Participate in the Knowledge Economy

• Discussion on Various Approaches to IPR Protection by National Agencies, Regional Cooperatives, and the Private Sector

• A Dialog on the Successes and Challenges Faced by Enforcement Officials in Investigating and Prosecuting IP Crime in the Region

Will these agenda items promote a “fair balance” between IP protection and the public interest. I suppose that depends on a few things. First, are IP protection and the public interest always opposed, or sometimes one and the same? I hope that the answer is perceived to be at least arguable. Second, can the Africans helping to organize, appearing on the various panels, and attending be trusted to look out for their own interests and the public interest? I know that my African friends are all quite capable of doing so, even if the panels “fail” to include North American or European NGO representatives to look out for African interests.

Development Agenda Item Number 11. “To assist Member States to strengthen national capacity for protection of domestic creations, innovations and inventions and to support development of national scientific and technological infrastructure, where appropriate, in accordance with WIPO’s mandate.”

The following conference agenda items are among those that appear to promote this goal of developing domestic creativity and innovation:

• Using IP to Promote African Economic Development, Production and Trade

• The Juncture of Sports, Trademarks, Broadcasting and Merchandising in Africa

• Why CMOs are Important and How WIPO and International CMOs Can Help African CMOs

• Exchange of Experiences Concerning the Protection and Monetization of Traditional Knowledge and Traditional Cultural Expressions in Africa

• Increasing African Competitiveness Through Innovation Policies, Franchising, Licensing, and Commercialization of R&D

• Discussion on the Economic Contribution of Copyright-Based Industries in Africa

• A Dialogue on the Culture and Business Models of Film in Africa

• Exchange of Experiences in Trademark and Geographical Indication Protection and Commercialization

• How Collective Bargaining Ensures that Creators/Performers Earn a Fair Livelihood and Contributes to a Solid, Vibrant Industry

• A Primer on Music Commercialization

To my view, the goal of promoting domestic industries is one of the most worthy and important development-related IP goals. Despite over a decade of criticism, TRIPS is not going away. I believe that all would be better off if IP were harnessed to support the vast and rich creative and innovative capacity of the people of developing countries in Africa and elsewhere. If that is done, we can move away from endless debates about IP as a trade issue and toward a more productive use of IP as a tool of economic empowerment.

Beyond these examples, I want to make a second, larger point. Inventions, creative works, and other fruits of the mind are not solely the product of the Global North. The human mind is the one resource we share in common, and everybody, everywhere has the capacity to create and innovate. Thus, the people of developing countries should not be treated as mere consumers of the products, innovation, and creativity of wealthy countries. IP is not an obstacle to poor people getting what they need from rich people; it can instead be the means by which the poor gain the things they need to flourish by protecting the products of their intellectual labor.

I wish that these assertions represented an attack on strawmen, but they do not. All throughout the Development Agenda discussions, the helplessness of developing countries was the implicit and sometimes explicit premise articulated by IP skeptics. It angered me then while I was sitting in the WIPO assembly hall in Geneva, and still angers me. IP isn’t something that helps only wealthy people. It’s something that could offer empowerment and security to the filmmakers of Nollywood and their aspiring cousins in Sollywood (RSA) and Hillywood (Rwanda); it could keep talented researchers at home and support the development of domestic industries.

In these criticisms of the IP Summit, I see the same, disappointing viewpoints. Critics assume that discussions of IP awareness and enforcement and promotion of IP industries are not in the interest of developing countries. As I said, implicit in that critique is the premise that people in developing countries are not producing things that would benefit from IP protection. They see IP as the tool of the wealthy because they see the wealthy as the producers of creative and innovative works.

However, I know that others disagree. While I’m a big fan of Development Agenda item number 11 ("strengthen national capacity for protection of domestic creations, innovations and inventions"), it’s quite clear that to some, Recommendation 14 dealing with TRIPS Flexibilities and Recommendation 16 dealing with the Public Domain are the heart and soul of the Development Agenda.

I think that the better view is that the Development Agenda embodies numerous perspectives. It was driven both by skepticism toward unrelenting, uncritical promotion of IP and an appreciation for how IP can greatly promote development when applied effectively.

Thus, I contend that a conference that looks at how IP can help Africans is not out of line with the Development Agenda. First, it embodies at least a substantial part of the motivation and substance of the Development Agenda as enacted (no matter how skeptical its original proponents may have been of IP). Second, I think that more trust ought to be placed in the African co-organizers and participants to look out for their own interests—that is surely in keeping with the Development Agenda’s emphasis on demand-driven technical assistance.

Could the conference be more balanced? In fairness, I can see an argument for inclusion of discussion about some of disadvantages of IP or discussion of business models based on innovative, less restrictive use of IP, such as Creative Commons.

With that said, I think that the outrage is overstated, and that calls to scrap it reflect an ideologically rigid, anti-IP viewpoint. While this conference may give short shrift to some people’s favorite parts of the Development Agenda, it certainly does not completely contradict or undermine it."

Afro Leo is grateful to Mark for this contribution.

Darren Olivier

Darren Olivier

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18 February 2012 at 20:16 delete

These Anti-IP NGOs that keep on arguing against the use of IP in the developing world are basically insinuating that developing countries or precisely in this case, Africans are not capable of creating IP themselves.

This is insane and an insult to mankind. The argument/anger should be channeled to their incompetent govts who fail to harness IP or invest in human capital which they're not currently doing.