Good innovation policy requires understanding of the regulatory impact of each policy instrument individually, as well as knowledge about the interaction of different instruments. It is therefore necessary to look at the whole spectrum available within each instrument, as well as be aware of how other instruments may be empowered or invalidated through interaction. The future of the World Intellectual Property Organisation (WIPO) will largely depend on how well it manages to incorporate the full spectrum of its own policy instruments into its operations, and how it manages to address the interaction with other fields.
From 27 April to 1 May, the 3rd Committee on Development and Intellectual Property (CDIP/3) will be convened at the WIPO headquarters in Geneva. As the years of discussions about the potential incorporation of a “Development Agenda” into WIPO have highlighted, these issues are important to the majority of the Member States. The resulting CDIP as well as WIPO’s Strategic Realignment Program are now well under way, and the upcoming CDIP/3 is the right time and the right place to discuss how to incorporate these issues into WIPO. The way to achieve this is to bridge the communication gap within governments, and to involve all stakeholders.
Innovation, the process of applying new ideas for the benefit of society, is often quoted as an overarching policy goal and the basis for many regulatory initiatives. Areas that have bearing on innovation include education, finance, health, market, competition, and others. While many of these areas also have other policy goals, some areas are driven primarily by innovation, such as exclusive rights, in particular copyrights and patents.
So when the Report on the International Patent System by the 12th Standing Committee on the Law of Patents (SCP/12) discusses promotion of innovation as basic rationale for the patent system, it touches upon the root of WIPO’s purpose as an agency of the United Nations. Simultaneously there are those who focus primarily on anecdotal evidence of parties that derived benefit from the patent system and consider economic analysis of the innovative effects unnecessary.
The fundamental conflict arises due to different assessments of the relevance of this anecdotal evidence, typically based on different agendas and motivations. From a systematic perspective, this anecdotal evidence is largely irrelevant, since it is in the nature of exclusive rights or other privileges that parties so privileged will derive benefit from them. These parties, including those acting as the professional mediators and facilitators of that benefit, naturally tend to put higher emphasis on this anecdotal evidence, especially where the anecdote affects them personally.
The common mechanisms described in the conclusions for the WIPO SCP/13 tend to give increased weight to these mediators and facilitators in the process, who sometimes find themselves speaking on behalf of Member States without guidance from other parts of industry and governments. This tradition of policy setting on behalf of the privileged parties by their facilitators and mediators gave rise to criticism in the past, describing the situation as a feudal system in which one part of society enjoyed privileges over the rest of society.
After initial debates about the Development Agenda discussed whether WIPO should address these issues, the CDIP and the Strategic Realignment Program now need to find concrete answers to the question how WIPO can be brought back in line with the public interest.
This is unlikely to achieve consensus unless all governments put higher emphasis on effective and pragmatic innovation policy because innovation policy always requires a weighing of interests, and sometimes instruments are mutually exclusive or diametrically opposed. An example of such a conflict and its ramifications is discussed in the IP-Watch Inside Views article “Innovation Policy: The Balance Between Standards and Patent Regulation.”
There are promising first approaches to a more holistic understanding of innovation policy, such as the Innovation & Regulation chair, created jointly by the Ecole Polytechnique, Telecom ParisTech and France Telecom. Its joint workshop with Vox Internet II about “Technical Regulation of the Internet: From Standardization to Behavioural and Societal Norms” on 31 March 2009 in Paris focussed on standardisation issues in Information and Communication Technologies (ICTs) and the Internet, in particular. FSFE‘s contribution to the workshop “Considerations on Innovation and Competition Policy“ provides an overview of how various areas that relate to innovation and competition policy interact with each other. The recording of the corresponding talk was also kindly made available by the organisers as Ogg Vorbis and MP3 file: [Download as OGG] [Download as MP3]
Unfortunately a more systematic approach to innovation policy is comparatively rare, and often receives no consideration for the positions of Member States at WIPO. Instead, it is quietly assumed by a significant portion of participants to the meetings that more is always better, resulting in statements that would like to see limitations and exceptions or the impact of WIPO’s policies on other areas of innovation policy banned from discussion at WIPO. Following this position would make it impossible for WIPO to fulfil its mandate, because it is not possible to maximise all instruments simultaneously.
In medicine, Paracelsus is often paraphrased having said that “the dose makes the poison.” This principle holds true also in policy. More is not always better, and even if made with the best of intentions, over-regulation will stifle innovation. Only through a balanced approach that considers exclusive rights alongside exceptions and limitations, as well as alternative approaches of using exclusive rights regimes to foster innovation, e.g. Free Software, will WIPO be able to meet future challenges.
The weighing of various innovation policy instruments will also have to include the impact that instruments have on each other. This requires a perspective of the entire toolbox of innovation policy that goes beyond the individual tool available to or maintained by any individual organisation. Good innovation policy has to go beyond partisan thinking of the tool manufacturer, because if all you’ve got is a hammer, everything looks like a nail.
So there will be situations where another instrument should prevail over exclusive rights in order to maximise innovation and the public benefit. As a UN agency, WIPO has a mandate to serve the greater good of humankind. Its role cannot be to maximise the benefits and privileges of a small group of society, or to avoid reconsidering privileges that have been granted in order to avoid upsetting the privileged group that finds those privileges highly profitable. The be-all and end-all of WIPO’s work is to which extent the granting of or exceptions from these exclusive rights serves society at large.
To achieve this, the WIPO secretariat depends upon the WIPO Member States for guidance and priority setting. All change must therefore come from the Member States, which currently seem split down a line defined by “20th century big industry” interests. It should come as a surprise that Group B, the group of developed countries, as well as the European Union are speaking out against inclusion of competency on Open Innovation Models, Free Software and Open Standards. At the same time many EU Member States individually and all of them jointly through the European Commission in its IDABC and Framework Programme activities have recognised the importance of Free Software and Open Standards for innovation and economic growth. The United States reaps the benefits of companies that are increasingly built upon Free Software and Open Standards, or at the very least see them as part of their strategic portfolio. Google, HP, IBM or Red Hat are well known, but others like Adobe, Intel or Oracle also made significant investments into these areas over the past years.
The disconnect between what Member States preach at WIPO and what they practice at home can to some extent be traced back to tactical considerations, but not be explained by tactics alone. There is an obvious disconnect within governmental departments, and a lack of engagement from industry, in particular, which has not briefed its government sufficiently on the benefits that local industry of developed countries can reap from a WIPO that can offer the full range of Free Software, Open Standards and Open Innovation Model competency alongside its traditional arsenal of exclusive rights.
These activities would for instance complement what EU Member States are already doing within the Open Source Observatory and Repository (OSOR), extending cooperation, resource sharing and innovative incentives across an even wider group of countries. It would also help facilitate the growth of international economic cooperation between local industries. The resulting increase in trade, economic activity and innovation would be to the benefit of all WIPO Member States in all stages of development.
WIPO has an extensive network of technical assistance activities with global reach and direct connection to the policy setting branches of most governments in the world. Adding competency on Free Software, Open Standards and Open Innovation Models to WIPO would put this competency at arms length for most policy makers around the world.
Finding an institutional approach to providing this competency at WIPO would certainly be a worthy endeavour for the upcoming 3rd Committee on Development and Intellectual Property (CDIP/3).