Harmonistation of Differentiation in Intellectual Property Protection? The lessons of history
| Autor | Graham Dutfield - Uma Suthersanen |
| Páginas | 61-79 |
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HARMONISATION OR DIFFERENTIATION IN INTELLECTUAL PROPERTY P ROTECTION? THE LESSONS ..
MARCO JURIDICO GENERAL
* Este artículo se publicó en el Quaker United Nations Office en Agosto, 2004 y se reproduce con
la expresa autorización de sus autores.
1. The authors are grateful to Geoff Tansey for helpful comments on an earlier draft and participants
at an informal seminar hosted by the Quaker United Nations Office, Geneva, in April 2004.
2.‘Strong’ is meant to refer to the extent of enforceability of the rights and to indicate the absence
- or at least relative lack – of exceptions to patentability by subject matter or technological field.
3. See Commission on Intellectual Property Rights (2002) Integrating Intellectual Property Rights
and Development Policy. Report of the Commission on Intellectual Property Rights. London;
DUTFIELD, G. [lead author] (2003) Intellectual Property Rights: Implications for Development.
UNCTAD and ICTSD. Both documents can be taken as supporting the view that the international
IP rules are too inflexible to accommodate the development needs of each country. For an alter-
native view see Sherwood, R. (1993) ‘Why a uniform intellectual property system makes sense
for the world’, in: WALLERSTEIN, M.B., M.E. MOGEE and R.A. SCHOEN, Global Dimensions of Intellectual
Property Rights in Science and Technology. National Academy Press, Washington DC.
GRAHAM DUTFIELD AND UMA SUTHERSANEN1
INTRODUCTION
Should the national and regional intellectual property (IP) systems of the world be
harmonised so that the rules governing IP protection standards and enforcement are iden-
tical everywhere? Or should differentiation be the norm so that each jurisdiction tailors its
IP 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,2 medium or weak IP stan-
dards 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 matter3. The ques-
tion this paper does seek to address is that of how much IP protection developing countries
should provide relative to other countries, particularly those that are wealthier.
History does not prove that differentiation is better than harmonisation. 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 IP protection is ne-
cessarily bad for poor countries, nor that weak protection or even no protection is bound
Harmonisation or Differentiation in Intellectual
Property Protection?
The Lessons of History*
Anuario Andino de Derechos Intelectuales.
Año II - Nº 2. Lima, 2005
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURIDICO GENERAL
to be better4. 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 behind5. However, on the basis of the historical re-
cord, this paper casts doubt on the idea that harmonising patent and copyright systems is
a good thing in terms of narrowing the wealth gap between rich and poor countries.
Part One of the paper explains how the priority of achieving minimum standards of
protection and enforcement of existing IPRs has been superseded by that of global IP har-
monisation for patents and what may be referred to as dynamic responsiveness for copyrig-
ht. It also identifies the strategies being adopted to accelerate and deepen these processes.
Part Two aims to demonstrate that this is very important and raises very high economic stakes.
Developing countries’ options to tailor their IP rules to their development needs are being
rapidly reduced if not eliminated, a situation which ought to be seen as extremely worri-
some if not alarming. Part Three provides numerous instances of how today’s developed
countries often ensured they had weaker IP regimes than those of the technologically more
advanced countries they were seeking to catch up with and benefited from doing so. In doing
so it highlights the significance of difference in terms of national IP regulation. Part Four
considers the contemporary relevance of what we learned in Part Three for policy making,
bilateral negotiations, and intergovernmental deliberations on IP.
I. HARMONISATION AND «DYNAMIC RESPONSIVENESS»
The international law of IP is complex, evolutionary and highly dynamic, never more
so than today. Businesses that operate across national boundaries are never satisfied with
the current IP rules, at least not for long. Since certain governments are structured in ways
that allow the interests of such businesses headquartered within their jurisdictions (or even
sometimes outside them) to convert rapidly to national trade policies and negotiating stra-
tegies that align closely to these interests, the pressure for change can become irresistible.
Until recently, the World Trade Organization-administered Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS) seemed to be the most important
element of the effort to pull up developing countries’ IP standards to the level of the
developed countries and to modernise IP protection so as to accommodate rapid advan-
ces in emerging fields like biotechnology and the digital technologies. But now, the
drivers of change are beginning to see TRIPS and the WTO forum as at least as much a brake
as an accelerator. Indeed, TRIPS may be outliving its purpose for those corporations that
4. It is worth mentioning here that India’s film industry does not appear to have been disadvanta-
ged by the fact that she had a copyright regime which was Berne Convention-compliant for much
of the twentieth century.
5. One could also mention here that many developing countries are well-endowed in terms of tra-
ditional knowledge, innovations, technologies and cultural works and expressions.
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