Preface

We all share the desire to live healthy and meaningful lives, in communities that keep us safe, provide us and our children with educational and employment opportunities and leave us the freedom to choose our own paths. Economist Amartya Sen challenged societies to pursue these ends – referred to as human development – rather than only narrower objectives like increasing gross domestic product. That is, we should measure individual endeavour and national wealth in terms of how well each of us can live rich rewarding lives, not just how much financial output we produce per capita. Moreover, we should organize our social institutions to help us in this broader effort.

This book brings a human development perspective to the complex institutions, laws and practices referred to collectively as intellectual property, or ‘IP’. What is the role of IP in human development? The answers to be found in the following chapters provide a fresh look at IP and how it affects the ability of people in developing countries to benefit from advances in medicine, agriculture, education, the arts and cultural traditions. The authors go further by looking at how trends and future changes in IP laws might impact people in developing countries, for better or worse.

Introduction

This chapter summarizes scenario planning relating to intellectual property (IP). Future scenarios are stories created to describe alternative future outcomes, each a plausible example of what might happen under particular assumptions (see Millennium Ecosystem Assessment 2005). Participants in scenario planning develop these stories of possible outcomes through a process of identifying the driving forces and uncertainties existing today (McNeely 2005, p. 62). The intention of scenarios is to consider a wide variety of possible futures rather than to focus on the accurate prediction of a single outcome (Evans et al. 2006, p. 6). Thus, future scenarios are not predictions, forecasts or projections. Projections need to be grounded in empirical evidence and accepted assumptions about trends. Since IP comprises such a broad spectrum of legal rights, each subject to trends of uncertain duration and consistency, few credible projections relating to the future of IP exist. Given the complex driving forces and multiple stakeholders shaping IP and human development, scenario planning may present an interesting alterative tool for exploring the future.

Section 1 introduces scenario planning as a tool for planning processes pertaining to IP and development. Section 2 discusses the most ambitious scenario planning process so far in the IP arena, conducted by the European Patent Office on ‘Intellectual Property in the Year 2025’, along with other scenario work addressing IP globally. Sections 3 and 4 explore how scenario planning has been used to address particular themes on IP and human development, such as the future of the public domain and the implications of new technology. Other potential themes for scenario planning are suggested along the way. Section 5 describes the World Intellectual Property Organization (WIPO) Development Agenda and suggests how scenario planning might help the multiple stakeholders clarify future directions for this agenda.

When an organization sets out to choose an IP management strategy, what are the options? This chapter presents some basic strategies for an IP manager to consider. In keeping with the thrust of this book, we look for fundamental concepts and practical strategies that hold true for corporations in all industrial sectors and nonprofit organizations, and those that apply in developing countries as well as in the wealthier nations. The most appropriate strategy depends on the organization's mission, its resources, and its competitive and market environment. An IP manager can choose a plan from this list and then customize it to the specific circumstances.

Intellectual property (IP) is the invisible infrastructure of innovation. Intellectual property rights are a source of hidden wealth worth trillions of dollars, and they impose hidden costs on the same scale. The rules of intellectual property range from confusing to nearly incomprehensible, and the professional practitioners who manage these rights sometimes seem to belong to a secret society. Many of those who use the intellectual property system, or oppose it, have hidden agendas. This book reveals those secrets, and helps readers grasp how the system works and how they can make it work for them.

Tensions about intellectual property are no surprise. Fights over intellectual property issues are increasingly tumbling out of obscurity and into public view on the global stage, in international organizations, national legislatures, boardrooms, and courtrooms.

• Pharmaceutical companies promote stronger patents to stimulate innovation, while patient advocates around the world seek greater access to patented drugs.

• Tropical nations demand that anyone who removes biological materials must ask permission and pay for the privilege, while researchers from the north complain that the “greenhouse door” is being slammed closed.

• The Canadian makers of the ubiquitous Blackberry device claim they were “bullied” into a $600M settlement by NTP, a small U.S. company with no products on the market. With its new wealth, NTP takes on Palm and others.

• The United States pushes China to stop the rampant piracy of software and movies, while others debate whether stronger enforcement of copyright in developing countries only benefits foreign businesses.

• Multinational media publishers promote tighter control over distribution of music and video works on the Internet, while open source software and open access science thrive.

PART I. GENERAL PROVISIONS AND BASIC PRINCIPLES

PART II. STANDARDS CONCERNING THE AVAILABILITY, SCOPE, AND USE OF INTELLECTUAL PROPERTY RIGHTS

1. Copyright and Related Rights

2. Trademarks

3. Geographical Indications

4. Industrial Designs

5. Patents

1. 7. Protection of Undisclosed Information

2. 8. Control of Anti-Competitive Practices in Contractual Licences

PART III. ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS

1. General Obligations

2. Civil and Administrative Procedures and Remedies

3. Provisional Measures

In 1995, I traveled to Verata village in Fiji, put on a local sulu sarong skirt, and sat cross-legged on straw mats in an open thatched meeting shelter with community leaders and other outsiders. Our host, Bill Aalbersberg, speaking Fijian, recited the terms of a biodiversity access- and benefit-sharing agreement that had been negotiated during the preceding week. The villagers planned to collect plants and marine invertebrates in collaboration with biologists from the University of the South Pacific, then to provide them to Smith-Kline Beecham for pharmaceutical research, in exchange for payments, training, and a royalty on sales of any resulting products.

INNOVATION AND CREATIVE DESTRUCTION

Innovation is a powerful force of human nature. Innovation creates new businesses, cultural movements, and social institutions, and destroys, replaces, or leaves behind the old ones. Innovation feeds on the known and converts it into the new.

Ready, aim, fire! These are the three steps in managing IP strategically. An IP manager first gets ready by deciding on general goals, and ends by shooting – selecting and implementing a plan. In between comes the crucial step of taking aim, by assessing the situation and finding out the facts. The previous chapter described some of the available strategy options. This chapter presents a comprehensive approach for assessing IP – taking aim – as part of the process of deciding which option is best.

An IP assessment provides information vital to the management of the organization, to maintaining or improving its competitive position, and to its ability to continue to have access to the best creative content, technology, scientific materials, and collaborations. In theory, IP assessment should take place on a regular basis. In practice, the fact-finding process may be performed routinely, sporadically as the occasion arises, or not at all.

INNOVATION MADE IN COMMUNITIES

Your computer, cell phone, sneakers, medicines, and book collection are all products of the innovation cycle. In each case, individuals working creatively used available knowledge and resources to come up with a new product, which became popular through wide adoption in society, and become available around the world for others to use.

For an idea to become a full-fledged innovation, something that is widely available in society, it must pass from person to person, either by transfer of intellectual property rights, or by publication or collaboration. Most products include the creative ideas of many people, combined and transferred. As John Donne said, “no man is an island,” and the same is true for an idea.

DIFFERENT GROWTH STAGES

IP practices change with the age of an organization. Early on, organizations protect just a few key assets with IP rights, relying on informal protection where possible. A middle sized organization expands its portfolio. Later, the organization has several portfolios of patents, trademarks, trade secrets, and copyrights, and a specialized intellectual property team to manage them. As shown in Table 16.1, the basic tools described earlier are used to produce different results for early, mid-, and late stage companies.

A startup or emerging company tends to depend heavily on trade secrets rather than patents and typically takes the simplest, least expensive measures to protect its trade secrets, using employee confidentiality agreements and nondisclosure agreements with outsiders.

SIMILARITIES AND DIFFERENCES AMONG NATIONS

The TRIPS agreement has led to significant convergence of national IP laws and the establishment of an international IP regime whose fundamental principles apply worldwide. Yet significant differences remain. Each country has the sovereign right and responsibility, subject to the TRIPS agreement and other international agreements, to promulgate IP laws that fit within its legal history and suit the needs of its citizens.

Innovation plays a central role in social welfare, and intellectual property has developed as a tool for driving and channeling innovation, by balancing access and exclusivity. How that balance is struck affects both individual organizations and larger communities and nations.

Intellectual property remains controversial. Yet it is and has long been a fundamental instrument of innovation and even personal freedom, and its crucial role will surely continue well into the future.

Nobel laureate economist Amartya Sen argues that national development goes beyond economics or technological progress, and should be seen “as a process of expanding the real freedoms that people enjoy,” including facilities for education and health care as well as political and civil rights. Sen points to freedom of expression and action, freedom to exchange words, goods, and gifts, as basic liberties, part of the way human beings interact with each other unless prevented from doing so. Economic wealth is only one means for achieving freedom in a long and healthy and happy life. Freedom is increased by political liberties, social opportunities, and the enabling conditions of good health, basic education, protective security, and the encouragement and cultivation of initiative.

DEFINING INTELLECTUAL PROPERTY

Before going further, we should clarify the definitions of intellectual property. People use the term “intellectual property” to refer to at least five different concepts, and this causes great confusion. By being aware of each definition, an informed reader can identify which meaning is intended in a given context. This is an important step toward intellectual property literacy in the global arena. Even people experienced with specific aspects of intellectual property may not be familiar with all the definitions. Being able to discriminate between them is a starting point for understanding the many conflicting views of the topic.

Dictionaries. Dictionaries define intellectual property essentially as something intangible, created by the use of mental ability, to which legal rights attach. The bundle of legal rights generally associated with ownership of property since Roman times includes the right to use a piece of property, to exclude others, and to benefit from, transfer, or destroy the property.