Fresh air at WIPO, but old habits die hard

Last week WIPO held a conference on “Intellectual property and public
policy issues”. That WIPO finally starts to consider the real consequences
of the rules it is making is clearly a good thing. But apart from some
very good contributions by people from the UN system, the conference
quickly acquired the bitter taste of a promotional event for the
status quo.

The speakers from the UN system, such as WIPO’s new Director General
Francis Gurry
, and the Chair of the patent committee Maximiliano Santa Cruz,
made it clear that there is fresh air at WIPO. Gurry said that it was necessary
to balance

“the incentive […] in the creation and development of
technology, and the need, on the other hand,to diffuse the social
benefits of new technologies.”

Not long ago, the very idea of balancing patents with anything at all
was proposed only by a courageous few at WIPO. Santa Cruz hit the
same note when he highlighted that

“the intellectual property system does not exist in a test tube. It
must primarily be a tool for humanity’s social, economic and
cultural development.”

Unfortunately, the conference programme largely went downhill from
there. On the topic of neglected diseases and access to medicines, a
speaker from one large pharma company, Pfizer, was quickly followed by
another, Sanofi-Aventis. The organisations who have really
been driving this topic forward, such as Medicins sans Frontieres,
simply weren’t invited for the discussion.

On the topic of green technology, “industry” – a very large and
diverse group of stakeholders – found itself represented by General
Electric. GE may be the world’s largest company, but that very fact
means that it is not representative of what most firms would want from
WIPO. The patent system favours large companies and their armies of
lawyers over small ones, and GE is able to muster the largest army of
them all. The fact that the company is based in the world’s richest
economy, the United States, makes it even less representative.

Thus it was no surprise that GE’s Carl Horton wanted WIPO to keep the
patent system strict. He blatantly ignored that there are other ideas
for providing incentives for innovation which avoid the negative
effects of patents.

The real low point for the conference’s substance were the talks of
Lee T. Feldman of the US-based National Peace Foundation, and that of
Daniel Johnson, an economist who was presenting a research project
financed by Feldman’s foundation.

Feldman’s talk was mostly devoid of arguments, but came down to the
claim that WIPO should continue to promote a strict system of
copyright and patents as it has in the past, since otherwise disaster
would ensue.

Johnson’s talk about the impact of patents on environmental
innovation, according to him, was based on his analysis of over 200
economic research papers. Conveniently, many of those were his own. He
claimed to present unbiased evidence for policymakers. However, he
just kept repeating the phrase “there is great evidence that…”,
rather than actually presenting that evidence, much less putting forth
the facts which he spoke about in his introduction.

Astonishingly, Johnson seems to have discovered a perpetuum mobile. At
around 5:45 in the recording of his talk he claims that patents do not
raise the cost of technology. This would mean that all the lawyers’
fees that go into filing, licensing and defending a patent simply do
not affect the price of the products based on the patented
technology. Even though this clearly goes against common sense, he saw
no need to give any proof for what he was saying. Instead, he quickly
moved on to the next topic.

The result of all this was that despite excellent high-level speakers
from international organisations, the conference ended up mainly
representing the positions of those who have long been in control at
WIPO: Governments of the US, the EU and Japan, along with large
industrial rightsholders. There were hardly any industry stakeholders
from developing countries, and no public interest NGOs represented
among the speakers.

By not including the broader picture, WIPO has missed out on the best
opportunity in years to demonstrate that it wants to play a productive
role in helping humanity to manage its knowledge wisely. There clearly
are good intentions in the organisation. Now WIPO only needs to act on