ICTSD / UNCTAD / TIPS Regional Dialogue “Intellectual Property Rights (IPRs), Innovation and Sustainable Development” in Eastern and Southern Africa
by Sisule F. Musungu, in charge of the Intellectual Property Project at the South Centre under the Centre’s Programme on International Trade and Development
This year marks the tenth anniversary of the coming into being of the World Trade Organization (WTO) and the adoption of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). It is now widely accepted that the adoption and entry into force of the TRIPS Agreement significantly changed the international intellectual property regime in both institutional and conceptual terms. By introducing the principle of minimum intellectual property standards, the TRIPS Agreement became the de-facto conceptual and strategic basis for subsequent multilateral and bilateral intellectual property standard setting. The minimum standards approach meant that any intellectual property agreement negotiated subsequent to TRIPS and covering the same subject matter among and/or involving WTO members could only create higher standards. The TRIPS Agreement also ushered in the era where higher standards for intellectual property protection could be directly obtained in exchange for concessions in core trade areas such as agriculture and textiles and where trade measures could be used as an internationally accepted avenue to enforce intellectual property standards abroad.
Institutionally, the adoption of the TRIPS Agreement under the auspices of the WTO meant that the World Intellectual Property Organization (WIPO) ceased to have its ‘exclusive competence’ on intellectual property matters. The TRIPS Agreement also marked the beginning of a significant high profile debate on the costs and benefits of intellectual property for developing countries, a debate that has led to unprecedented levels of attention to be given by civil society, academic and other groups to intellectual property matters with important implications for the institutional dynamics in this area. In particular, the debate on the benefits and costs of intellectual property for developing countries has culminated into a number of important international developments including significant levels of funding for public interest issues relating to intellectual property from both philanthropic foundations and development agencies of developed countries; the adoption of the Doha Declaration on the TRIPS Agreement and Public Health in November 2001 and a number of follow-up decisions in the WTO2; the establishment of the United Kingdom (UK) Commission on intellectual Property (IPR Commission) and the publication of its influential report in September 20023; and the establishment of the World Health Organization’s (WHO) Commission on Intellectual Property, Innovation and Public Health (CIPIH) in 20044, among others.
By examining these and other important developments, a number of emerging general trends in the field of intellectual property are discernible. These range from trends towards the upward harmonisation of intellectual property standards both at the international and bilateral level to increasing academic and policy work examining the role of intellectual property in development. This paper reviews some of the main trends in the field of intellectual property and the issues and challenges that arise for the establishment of a development-oriented international intellectual property framework.
The paper is divided into four main parts. Following the introduction, part II discusses some of the main institutional and issue-specific trends in the field of intellectual property at the international, regional and bilateral level. Part III then examines the issues and challenges that arise, in the context of these trends, for the efforts currently underway in various forms to establish a development-oriented intellectual property framework. Part IV concludes the paper with some final remarks.