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Intellectual Property and Development
What is Development?
Development is a broad concept to define, but important to understand because it is among the key objectives of the global and many domestic intellectual property systems. Development used to be the same as
modernization and economic growth. Indeed many experts in the past considered these two features to be both a primary aim and indicator of international development.
More recently, economic growth has been valued, not for its own sake, but for facilitating human freedom. Experts like the Nobel prize-winning economist Amartya Sen, renowned philosopher Martha Nussbaum and others have called this the “capabilities approach” to development. Economic growth can provide people with more money and as a result more freedom to make choices in their lives. However that freedom is meaningless without the capabilities to enjoy good health, food security, a clean environment, quality education, vibrant arts and culture and so on. Intellectual property is, in one way or another, linked to all of these essential things.
Why Does Intellectual Property Matter for Development?
A well balanced system of granting and exploiting intellectual property rights is a factor in economic growth as it encourages investment and trade, but if designed and used appropriately, it can also help cultural creativity to thrive, educate a population or workforce, drive technological innovation to improve health and nutrition and yield other social benefits as well. Intellectual property by itself neither helps nor hinders development
necessarily. It is how laws, policies and practices are designed and used in different countries that determine whether IP is effective for development purposes. Flexibilities in the international treaties and agreements that you learned about in earlier modules can facilitate development because countries can use them in a manner that enables them to pursue their own public policies, either in specific fields like access to pharmaceutical products (for instance, through compulsory licensing in some circumstances) or protection of
their biodiversity (with patents or another unique system), or more generally, in establishing macro and microeconomic and institutional conditions that support development.
For example, some countries may want cultural works to be widely available in the public domain as early as possible, to allow others to freely use the material, so these countries maintain the term of copyright protection at the Berne Convention and TRIPS Agreement standard of 50 years after the author’s death. Other countries may want to provide their cultural industries with more revenues for a longer time, so have extended the term of protection to the author’s life plus 70 years. Concerning patents, you learned in a previous module that the TRIPS Agreement standardizes the subject matter of protection: Patents must be
available for any inventions in all fields of technology that meet the criteria of novelty, inventiveness and usefulness. But there is also some flexibility: WTO members may exclude some inventions from protection if that is necessary to, for example, preserve the structure of civil society or as it is expressed “to protect ordre public” or for reasons of protection of morality; human, plant or animal life or the environment. So while protecting ‘essentially biological’ inventions that resulted from only human intervention with patents is possible, there is worldwide debate, not only in developing countries but also in places like the United States, as to whether human or animal or plant genes, for instance, should be patentable. The TRIPS Agreement is also flexible about protecting higher life forms to the extent they satisfy the criteria of patentability, like plants and animals, but it also allows other avenues such as a system like plant breeders’ rights. Which of these flexible options a country chooses will probably depend on a wide variety of social, cultural and economic
Furthermore, to guarantee access to some important inventions that are protected, like pharmaceuticals, countries are allowed to issue compulsory patent licenses in some circumstances. This procedure has been used, for example, to provide access to medicines in countries including Malaysia, Indonesia, Brazil, Thailand and Ghana.
What is WIPO’s Role?
Development is at the core of WIPO’s mandate. When the organization was first established, its role was to “promote the protection of intellectual property throughout the world.” Upon becoming a specialized agency of the United Nations in the mid-1970s, this role was more specifically connected to development. Thereafter, WIPO has been tasked to promote creative intellectual activity and technology transfer to developing countries “in order to accelerate economic, social and cultural development.”
Of course, as we have learned already, this can be done with flexible systems of intellectual property protection. WIPO promotes development through intellectual property policy in several ways. In addition to being a leading forum for negotiating new treaties and agreements (including their flexibilities), WIPO
• administers some of the most important processes for protecting intellectual property rights internationally,
• provides training and education,
• legislative and technical assistance
• serves as a reservoir of rich databases of intellectual propertyrelated information.
WIPO has, in the past, heard suggestions from its Member States, nongovernmental organizations and others to improve work in the area of intellectual property and development. Some of these suggestions date back
several decades, since the issue of intellectual property and development surfaced in the 1960s. None, however, have had as much impact as a formal initiative, first advanced by Argentina and Brazil in 2004, for a new and specific “Development Agenda.”
A well balanced system of granting and exploiting intellectual property rights is a factor in economic growth as it encourages investment and trade, but if designed and used appropriately, it can also help cultural creativity to thrive, educate a population or workforce, drive technological innovation to improve health and nutrition and yield other social benefits as well. In other words help development in its broadest sense.
It is how laws, policies and practices are designed and used in different countries that determine whether IP is effective for development purposes. Flexibilities in treaties and agreement are key to this. Such flexibilities are
inherent in the TRIPs agreement and may concern patents copyrights or other forms of Intellectual Property.
Development is at the core of WIPO’s mandate and in 2004 a formal initiative, first advanced by Argentina and Brazil , lead into what became called a new and specific “Development Agenda.” At the 2007 General Assembly the Member States of WIPO adopted 45 such recommendations relating to IP and development, grouped into 6 clusters. These recommendations formally constitute the WIPO Development Agenda. They aim to ensure that development considerations form an integral part of the work of all sectors of the organization, in other words, to “mainstream” development. Mainstreaming became to mean that all WIPO activities take account of the different potential impacts of intellectual property on economic, social and cultural development.
The 6 “clusters” of recommendations deal with the following general topics:
- Technical assistance and capacity building (Cluster A).
- Norm-setting, flexibilities, public policy and public domain (Cluster B).
- Technology transfer, information and communication technologies (ICT) and access to knowledge (Cluster C).
- Assessment, evaluation and impact studies (Cluster D).
- Institutional matters including mandate and governance (Cluster E).
- Other issues (Cluster F).
The Development Agenda is not exactly like most of the treaties and agreements administered by WIPO because it is more policy than typical international law, but it will have an ongoing impact on the organization, its Member States and, indeed, all of those who are interested in the global intellectual property system.