James Love is the Director of the Consumer Project on Technology (CPTech), a non-government organization with offices in Washington, London, and Geneva. Created by Ralph Nader in 1995, CPTech focuses on intellectual property rights and health care and electronic commerce and competition policy.[1] Mr. Love was previously Senior Economist for the Frank Russell Company, a Lecturer at Rutgers University, and a researcher on international finance at Princeton University. Mr. Love received a Masters of Public Administration from Harvard University's Kennedy School of Government, and a Masters in Public Affairs from the Princeton's Woodrow Wilson School of Public and International Affairs.

The Business Law Journal spoke to James Love to discuss his thoughts on the events at the UN and the general implications of various intellectual property policies for developing nations.

Background

Debates over development strategy at the United Nations (UN) have raged for decades. The long-standing question of whether strong business interests aid or hamper the development of poorer nations remains unanswered. As UN agencies such as the World Trade Organization (WTO) and World Intellectual Property Organization (WIPO) seek to establish global trade regimes, these debates increasingly implicate intellectual property rights. Industry leaders argue that a strong, international intellectual property regime will help poorer nations develop while advocates of consumer rights believe that such a regime does substantial harm to developing countries.

Historically, the WTO and WIPO have focused on creating harmonized intellectual property systems across national borders. Critics have described these efforts as an expansion of the scope of intellectual property rights at the expense of all other objectives. In recent years, however, intellectual property policies at these two agencies have begun to shift due to mounting pressure from developing nations.

At the WTO, for instance, the implementation of restrictive patent systems in developing nations is now subject to important exceptions for the protection of public health. The 2001 Ministerial Conference of the WTO, held in Doha, Qatar, adopted a declaration clarifying the scope of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The "Doha Declaration" unequivocally stated that during public health crises, developing nations would be allowed to institute compulsory licenses for the cheap manufacture of patented drugs. The Declaration has given public health experts new hope in combating global epidemics such as HIV/AIDS.

In September of 2004, WIPO adopted a proposal by Argentina and Brazil to establish the "Development Agenda." As with the Doha Declaration at the WTO, the adoption the Development Agenda at WIPO represents a major shift of priorities. WIPO has now pledged to consider the development of poorer nations as it makes intellectual property policy. CPTech was instrumental in mobilizing support for the Development Agenda. They helped organize a group comprising of scientists, economists, legal experts, consumer advocates, and health activists including two Nobel Laureates who issued a joint statement entitled the "Geneva Declaration on the Future of the World Intellectual Property Organization." This statement was one of the motivating forces behind the Brazil-Argentina proposal for a Development Agenda at WIPO.

Q: Tell us how the Development Agenda emerged at WIPO, and how the Consumer Project for Technology was involved.

A: The Development Agenda came out of a two-year effort by both developing country delegations and non-government organizations (NGOs). I think the Consumer Project for Technology played a very important role in pushing WIPO to be more like a UN agency. After the negotiations on the Doha Declaration,[2] there was an effort to rethink the mission of WIPO. Part of the reason for that was that, for developing countries, WIPO had historically been something of a backwater and not the kind of place where you had ambassadors attending meetings. The agency was where you had technical guys in the field attending meetings. And often, they were people who were overly sympathetic to intellectual property rights holders. Now, when I see the more political people in the missions - the higher-level people - they have a different point of view on things, like equitable access to knowledge resources.

So, there was an effort a couple years ago that we were involved in to try and change WIPO as an institution. A lot of people were frustrated, myself included, that we had made progress at a lot of UN agencies, but not at WIPO. We had made progress at the World Health Organization, at the WTO, at the United Nations Development Program (UNDP), and at the United Nations Conference on Trade and Development (UNCTAD). But, at the end of the day, development tends to be very much influenced by the policies governments set from either the patent office or the copyright office. As a result, there was a question whether or not one could really do an "end run" around WIPO, which was perceived to be a renegade agency within the UN system, or whether one had to deal with the agency head-on.

In 1996, we started attending WIPO meetings. Initially, we were represented at the meetings on traditional knowledge, international trade, and copyright. We also attended various committee meetings on patents, including patent enforcement. We had really big problems in the beginning. We had problems getting in the door. We had problems with credentials. We actually had the US government block our civil society credentials for participation on the Enforcement Committee at one point. The Secretariat rejected our application for a couple of other meetings. As you can see, in the beginning, it was really an uphill battle to participate. But we made an effort. We wrote a lot of technical papers on issues.

We came to the conclusion that - and I think this is really important - there was a fairly large and expanding Secretariat with an independent source of funds from the patent cooperation fees. So we had an agency that was in permanent activism mode. In our minds, it was a question of whether they were just going to be just an instrument of the recording industry or of the pharmaceutical companies. Were they going to be a constant hammer, a dedicated forum for special interests? They were not just going to shut down by themselves. They were not just going to stop having meetings or start firing staff. We were constantly in a defensive battle, fighting really bad proposals coming out of WIPO. So the idea we had was, let's think about putting more positive work items in front of them and start competing for time and space in the policy process. This is exactly what happened at the WTO with the Doha Declaration. The Doha Declaration changed everything, because every work or agenda item on access to medicine was different from any other work items they might have thought of. Our idea was then to bring within the WIPO structure some sense that there is an alternative agenda.

Q: Developed nations have argued that WIPO is not the proper forum for these considerations. You mentioned, in fact, that progress on these issues has already been made in numerous other UN bodies such as the United Nations Development Programme (UNDP) and the United Nations Conference on Trade and Development (UNCTAD). These are agencies that are already devoted to development issues. Developed nations have argued that WIPO should be focused solely on creating a comprehensive intellectual property system. How do proponents of the Development Agenda respond?

A: Well, you know, it's funny, because these developed nations are constantly promoting high IP standards as a key to development. It is just hypocritical, quite frankly. The Secretariat, the Europeans, the Americans, and the Japanese are constantly going around the world saying, "You are poor because you do not have strong enough IP protections. Your patent and copyright enforcement are too weak. You do not have broad enough patent scope or linkage between patents." They are actually telling countries to their face that strong IP protection is for their own good. They have always described more restrictive IP standards as something integral to the developing countries' economic development. For them to say that they do not like the Development Agenda because they do not like development wonks at WIPO is pretty crazy.

In 1974, WIPO became a specialized UN agency. If you look at the UN agreement with WIPO, it is clear about promoting development. Article I of that agreement states that WIPO's purpose is "promoting creative intellectual activity and … facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development." It certainly is the case that when WIPO joined the UN system, they agreed to be more than just a proponent of rights-owner interests.

But whatever they agreed to, it is incumbent upon us to decide at every moment what the right thing is to do. Today, nobody can argue that this is a good moment to try and expand the scope and power of intellectual property mindlessly. Since the 60's and 70's, there has already been a huge ratcheting-up of the nature of IP rights, the scope of IP rights, and the enforceability of IP rights. The world is very different in 2004 than it was in 1994, 1984, or in 1974.

Now, there is a new wave of public goods models such as free and open-source software, the human genome project, open medicine models, and open access publishing. Even products like GPS systems are shared. Not to mention the rise of the Internet. In light of the proven benefit of all of these public domain models, it does not make any sense for WIPO to ignore them. WIPO, however, has been hard of hearing when it comes to these other ideas. The WIPO Secretariat, in particular, has become the object of ridicule among people who are experts in intellectual property. This is really a bad thing for the main UN agency for intellectual property policy. They have to become more modern, more up-to-date, and more balanced in the way they look at things.

Q: You mention the rise of these public goods models. Many of the proponents of these models seem to be focused on copyright reform and the peer-to-peer file sharing debate. I have noticed some differences in the language used by these activists and the language used by proponents of the Development Agenda. For example, I read a BBC article that reported on the Development Agenda. The title was "Fight for your Right to Share," and its focus was file sharing and digital rights management. What do you think the focus of the Development Agenda will be when some of the discussion seems to be so far removed from vital public health issues?

A: I think what you saw in the BBC article was a frame that someone else brought to the issue that did not really emerge out of what happened at the meeting. First of all, WIPO was not endorsing, despite what the BBC might have reported, widespread peer-to-peer file sharing without any remuneration model for artists. They were not really addressing peer-to-peer music technologies at all. I know that rock and roll is ruling the roost when it comes to IP policy nowadays, but it is not the only thing that is important. When they talk about things like limitations and exceptions to copyright and open source models, they are not all talking about using peer-to-peer music file sharing. There are a lot of other areas that they are concerned about. They are concerned about distance education and how that plays out in copyright. They are thinking about free software. They are thinking about access to medicine, seeds, agricultural technology, textbooks, and scientific journals. A whole host of development technologies come into play.

For the most part, I think that the member countries at WIPO are dedicated to the idea that there has to be an economic model for people who are writers and performers of music to make money. They are not at all hostile to that basic notion. But one cannot say that, just because peer-to-peer file sharing exists as a challenge to compensating these artists, we need to forget everything that might affect access to knowledge in all areas.

The problem is as follows: we may adopt something like a digital rights management[3] (DRM) model because of what is happening in popular music, but the technologies themselves apply far beyond the area where there is a problem. The unintended effect is that we introduce measures for locking up data, which would defeat the normal limitations on copyright that would allow one to use information for educational or personal uses. It could even make it impossible to archive documents. We end up creating problems in other areas of public policy.

Q: You're describing a trade-off between the development benefits of less restrictive copyright and the ability of copyright holders to retain strict control over their works. How can proponents of strong copyright regimes choose the latter, when one could argue that the market value of copyrighted works is so small relative to the amount of money we spend on development?

A: Copyrighted works are a small but culturally important sector of society. People should not minimize the importance of finding a solution for the performers and authors of music. The proponents of the Development Agenda recognize that compensating artists is important. But they also think that other considerations are important as well.

Another way of thinking about this is to ask: is there a connection between access to knowledge and access to medicine? And that is, I think, the way CPTech would put it. Rather than framing the argument as "the right to share," we should be promoting "access to knowledge." Also, we should be asking: do we promote access to medicine? To me, these ideas are complementary. I have worked on the access to medicine debate for a long time, and that is the majority of what we do at CPTech. We focus our energies not just on issues such as access to medicine, but new business models for the research and development (R&D) that it takes to create new medicines. We work a lot on the creation of a new global and national framework for financing R&D. We are working on frameworks that include private sector, for-profit, decentralized, entrepreneurial-type R&D models, which are consistent with lowering barriers to get access to medicines.[4]

In the area of access to knowledge - and I think this has come about in the last couple years - we have decided that the copyright debate has been focused too much on the popular music problem and too little on these other important areas. We are making an effort, along with others, to reframe this issue as access to knowledge. As in access to medicine, access to knowledge does not really mean that nobody gets paid for his or her work. Certainly, with medicine, everybody is completely honest about the fact that the solution has to be consistent with an economic model that supports innovation. It is not like the Development Agenda people don't get it; they do get it. They are just pushing to make sure that when we design public policy, we do it in a way that promotes more equitable access to knowledge. We need to make sure that developing countries have access to scientific journals, textbooks, software, data, and distance education tools.[5]

Q: Where do you think the Development Agenda is going to go, at WIPO? How hopeful are you that progress will be made?

A: Well, I think the Development Agenda is a big deal. If you think about what is going on right now, there is an attempt by our side to change the culture of WIPO. Part of it is just language. There was a debate in the last standing committee on copyright, which took place just last week[6], where people were using the term "public domain" and "limitations and exceptions." Development Agenda proponents scheduled for the June meeting of the Standing Committee on Copyright an agenda item on "Limitations and Exceptions." So, there will be papers submitted and a real debate about the topic. I have just never seen anything like that, before.

I believe that things are going pretty well for us. Already, there is more openness and transparency in the proceedings. Now, there are quite a few NGOs who have been accredited to participate in the proceedings, and they allow our guys to speak. They do not just let the industry guys speak and shut us out. They try to provide more balance. The delegates from each country are benefiting from the wider range of discussion. It is no longer just everybody sitting around discussing how they can be more Catholic to the Pope when it comes to intellectual property rights. It is no longer a contest to see who can be stronger for the rights owners. There are actually people who will criticize overreaching policies. People are questioning whether going too far is a good thing or a bad thing. I have not seen that happen much, in the past.

We are having important victories on procedural issues. We have some progress that we still need to make in the patent committees. But in other places, we are getting our stuff on the agenda. We are getting the Development Agenda scheduled through the General Assembly, which is a tough nut to crack. We have got the Standing Committee on Copyright now scheduling an agenda item on limitations and exceptions.

Overall, I think that this whole idea of turning WIPO into a true UN Agency is capturing people's imagination. Frankly, I think that there are a lot of people who work for the WIPO Secretariat who think that it is in their interest to move in our direction. They realize that they are on a collision course with reality and want to move in the other direction. How far can they go, expanding the scope of intellectual property rights after what we have already done? What is left? We have a 95-year copyright term in the United States. Does the WIPO Secretariat want, like, 205 years? There has to be some point when the people at WIPO realize that that is not the most interesting problem to work on. There are some people in the Secretariat who would rather not be the object of ridicule within their own profession. They like to think that they have a little more intellectual élan than they do now. Now, they are just considered to be hacks for trade associations, and a lot of these guys are not stupid people.

Q: That's great. You're proposing IP policy liberalization for career benefit?

A: Look, there are some pretty interesting problems to work on. How do we regulate production and processing methods, for example, and still maintain traditional limitations and exceptions for public interest uses? Not such an easy problem. Why is WIPO spending practically zero time on it? What is the relationship between privacy and digital rights management? Why does WIPO spend zero time looking at the implications of these new technologies? How do we think about developing distance education products in a world where products move across borders? Limitations and exceptions are anything but uniform. How do we deal with the standards problems that the Internet Engineering Task Force faces when they try to find patent-free implementations for public-domain standards of Internet technology? How does Google survive when they are probably infringing on 150 countries' copyright laws, doing what they do every day? How do we really solve the musicians' problems? How do we implement the Doha Declaration on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Public Health?

I can go on and on. It is not like there is a shortage of work, if you are actually trying to promote the public interest, innovation, and creativity. There are plenty of areas that WIPO would find that it would be relevant to do work in, and that would be welcome within the spirit of a true UN Agency. Compare that to just sitting around trying to dream up bad ideas while crushing developing countries, which is what is going on right now.

Some people will probably think that our vision is a little more interesting.