Realizing Property Rights page / 266 Public Policy Objectives and Intellectual Property Rights The examples of public health and indigenous peoples / Philippe Baechtold Introduction 1 While we are witnessing major developments in technology with a dramatic impact on our lives, the intellectual property ( IP ) system is increasingly in the spotlight of public attention. The growing use and success of the system has naturally brought to the surface many different, and not infrequently conflicting, interests related to IP. The diverse opinions expressed in respect of intellectual property rights ( IPRs ) range from full support of the IP system Intellectual property is the oil of the 21st century 2 ) to criticism ( Intellectual property is one more way for rich countries to extract wealth from poor countries 3 ) and even to unconditional rejection ( Patents and PBR s [plant breeders rights] are the devil incarnate 4 ). Beyond the cross-cutting interests and concerns of the users of the system understood in a broad sense (IP owners, IP practitioners, governments, industry, consumers, research institutions), the IP system is confronted with numerous public policy concerns associated with developmental issues, public health, the protection of the environment, nutrition, and biological diversity, among others. This article begins with a short description of the main features of IP and its raison d être (section I), attempts to place IP in a wider context of the public policy landscape, including its relationship with human rights (section II), and then expands on the role of IP in the context of two specific areas, namely public health and the rights of indigenous peoples.
Public Policy Objectives and Intellectual Property Rights page / 267 Intellectual property A brief description of intellectual property As its name illustrates, IP has to do with some sort of property right in relation to intellectual achievements. Generally speaking, IP is understood to cover the results of intellectual activity in the industrial, scientific, literary, and artistic fields. IP is traditionally divided into two branches, industrial property and copyright. As one source for a possible definition of IP, the Convention Establishing the World Intellectual Property Organization ( WIPO ), concluded in Stockholm on July 14, 1967, provides that IP shall include rights relating to literary, artistic, and scientific works; performances of performing artists; phonograms and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks; service marks and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary, or artistic fields. This definition is by no means exhaustive, and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights ( TRIPs Agreement ) is but one example of the evolving scope of IP, for example, with respect to the inclusion of the protection of undisclosed information. IP consists of intangible elements which can be incorporated in, or associated with, goods or services, thereby adding value to them, and IPRs extend to the intellectual component as such, rather than to a single physical object in which that component is embodied. The main rationale underlying the IP system is that it acts as an incentive encouraging development of, and innovation in, new products and services for the benefit of society. The system is based on the principle that private rights are granted in order to serve the public good, but increasingly some question whether the private interests are not being privileged to the detriment of the public interest. Indeed, and perhaps precisely due to the increasing use and success of the IP system, its public image has been characterized by growing criticism. This bad press stems in part from concerns about the perceived primacy of IPRs over public interests, thus forming an obstacle for countries wishing to pursue other urgent policy goals, but also from fears that protection is sometimes obtained for undesired developments as well as for matter which is believed to be in the public domain. In addition, there is no unanimity among developing countries as to whether the adoption of certain levels of IP protection would result in real benefits for them, as has been the expectation raised in a number of international negotiations. IPRs and property Since the expression intellectual property refers to the term property, a brief summary is given here on the common features of and differences between property in tangible objects and IP. One common element relates to the fact that both tangible and intangible property confer an exclusive right permitting the exclusion of third parties from the use of the
Realizing Property Rights page / 268 object of the property right. Neither tangible property nor IP provides an absolute and unlimited use of the protected object, but both consider the owners rights as part of, and subject to, the general legal framework, thus providing for important exceptions to rights based on legal provisions dealing with other matters or on the rights of third parties. These limitations range from intrinsic limitations on the one hand to more drastic measures such as the expropriation of land for public constructions or compulsory licenses in patent law. Finally, both types of rights can be fully or partially assigned, transferred, or licensed. There are, however, also some differences between the two types of protection, the main ones being the following: IP is of a ubiquitous nature, in the sense that the non-tangible IP component can be incorporated in or associated with many objects, and the objects may be in different places, thus adding an international dimension to this form of protection. Rights in tangible property, on the other hand, are generally dependent solely on the law of the country where the object is located. Finally, in general, IPRs are subject to many restrictions, perhaps more so than is the case in the area of tangible property. IPRs and monopolies There is no international consensus as to whether IPRs constitute monopolies, but since they are sometimes characterized as monopoly rights, particularly in economic theory, this question will be briefly addressed here. While no definitive answer can be given, an attempt will be made to outline certain aspects that might contribute to better understanding the issue. Put in very general terms, while it is a fact that IPRs confer on their owners a position of exclusivity (in the sense of granting the right to exclude others, rather than a positive right to use the protected matter) in respect of the protected intellectual creations, unlike an economic monopoly, they do not prevent competition on the market by others who develop creations that do not fall under the scope of IPRs. For example, a patent on a pharmaceutical product for treating a given disease would not prevent the market entry of another, different product for treating the same disease, and copyright in a novel narrating a love story would not prevent the publishing of a love story written in a different style and way. In other words, only producers of copies or infringing products would be subject to sanctions under IPRs (so-called free riders ), but products and services that are outside the scope of IPRs could still enter and compete on the market. Under these circumstances, the question arises as to the extent to which IPRs should enjoy unlimited protection or, in other words, are there situations, which justify a limitation of IPRs and, if so, to what extent? The question of the nature of property rights in respect of intangible creations in relation to other rights thus becomes fundamental in determining the scope, role, and limitation of IPRs, and the following sections will address the relationship of IPRs and human rights, which may help to determine the scope
Public Policy Objectives and Intellectual Property Rights page / 269 and limitations of IPRs, and the role that IPRs can play either in supporting or in obstructing other, perhaps more fundamental, rights. In this context, two areas, namely public health and the rights of indigenous peoples will be examined. IPRs and Human Rights In order to paint a general background to the debate, among the many legal texts related to the interface between human rights and IPRs, two will be quoted here: the Universal Declaration of Human Rights of 1948 ( UDHR ) 5 and the International Covenant on Economic, Social, and Cultural Rights. 6 For the present purpose, it is sufficient to cite UDHR Article 27.1 which states that everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits, and Article 27.2 of the UDHR, which states that everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. These two paragraphs of the same provision of the UDHR illustrate the complex and sometimes ambiguous relationship, which may give rise to contradictions, between the IP system and human rights. On the one hand, the right to freely participate in the cultural life of the community and to share in the scientific advancement and its benefits is guaranteed, and on the other, the right to protection of the moral and material interests flowing from the results of IP production is ensured. Although IPRs have at times evolved in relative isolation, the subject of attention mainly by a relatively small community of specialists, this text has laid the foundation for a long-standing debate on the relationship between IPRs and human rights. 7 Two main schools of thought have set the tone of the debate. The supporters of the theory according to which human rights and IPRs are in opposition have attempted to deny IPRs the status of human rights, thus establishing a hierarchy among the rights contained in the UDHR, which would afford higher priority to certain human rights and thus justify imposing limitations on IPRs for the benefit of interests belonging, from their viewpoint, to the public rather than to the private interest. The proponents of the co-existence theory, on the other hand, do not consider that there is an inherent conflict between the two bodies of law, as they interplay in a mutually supportive manner, for example, since IPRs have contributed to the establishment and development of other fundamental rights, such as the freedom of speech through copyright. While the confrontational, but perhaps not always productive, debate continues to probe the relationship between IPRs and human rights, let us examine the nature and position of IPRs within the general legal order in a little more detail. The fact that IP refers to property in a variety of languages 8 tends to suggest that the historical will of legislators in a variety of systems of jurisprudence has been to grant IPRs a position comparable to other forms of property rights. The UDHR and other international instru-
Realizing Property Rights page / 270 ments seem to suggest that property is a part of our common legal heritage and a fundamental principle recognized in international law. Indeed, the right of property in its different variations forms the basis of many activities recognized by society, ranging from everyday activities, such as the use of daily objects for personal or professional purposes, to international trade. Historically, even in those systems that rejected capitalism, some type of rights allowing the possession and use of assets were recognized in order to ensure the functioning of a complex society. Arguably, a free and democratic society would hardly have been able to emerge and develop without some sort of property rights. But illustrating the role of property in the development of both individual freedom and a democratic and free society does not yet offer an answer as to whether IPRs are human rights or not, and how they should be treated where they are perceived to conflict with other fundamental societal objectives, even if referred to in instruments as fundamental as the UDHR. One approach 9 argues that there is a difference between widely recognized rights, of which IPRs would be a part, and universal norms, that is, fundamental human rights, the applicability of which cannot be questioned or limited, since they exist independently of a normative framework. Arguments to the effect that IPRs are not fundamental human rights include, inter alia, that IPRs are rights established by legislative acts (which acts can also amend or abolish them), that IPRs are limited in time (which is not the case for fundamental human rights) and that, although some IPRs have a component attached to the personality of the author or the inventor (for example, copyright and patents), in general, the economic aspects of those rights prevail. These characteristics of IPRs would not in general, if at all, apply to universally and inalienable human rights. Whether this differentiation between IPRs and human rights is generally accepted or not, and irrespective of arguments to the effect that IPRs differ from fundamental human rights, for example, because they are established and can be amended by legislative acts, are fully convincing, it is a fact that IPRs have been treated, at least in Western societies, as a form of property right. The notion of property has, however, evolved over time in parallel with the development of certain forms and needs of society, and the same is true of limitations in the public interest on the exercise of property rights, for example, limitations based on environmental concerns, a relatively newly emerging dimension. One might thus argue that IPRs are widely recognized as property rights, but that they lack the fundamental character of human rights. Whether one agrees or not with this approach, neither unconditional support for, nor unmitigated rejection of, the IP system are suited for understanding its potential role. A more productive way of approaching the matter could consist in adopting a more holistic view of the role and function of the IP system, exploring IPRs as one of many available tools embedded in a given legal order at a given time. The function
Public Policy Objectives and Intellectual Property Rights page / 271 of IPRs in relation to access to health care and to information, or in relation to indigenous knowledge, is far from uncontroversial. But rather than engage in an endless and probably fruitless debate over the hierarchy of rights, which might never get beyond a theoretical dispute, if not a war of principles, the supportive function of IPRs in the broader framework of industrial, commercial, and cultural development could be further analyzed. If such a role of IP can be established, the extent to which limitations are imposed on IPRs may be determined differently than if such a supportive role cannot be demonstrated. Such an assessment could examine some areas in respect of which the IP system has given rise to particular concerns, for example, public health and the rights of indigenous peoples. The following section will address precisely these issues. IPRs in the context of some recent policy developments Having regard to the increased use of the IP system in recent years in conjunction with its perceived weaknesses, and considering the common objectives of humankind as expressed, for example, in the United Nations Millennium Development Goals, 10 some assert that the system will gain general acceptance in the future only if it succeeds in proving its usefulness in a wider context of policy goals of the whole community of those who use and are affected by the system. But before going into further details on how the IP system can be useful in achieving some broader policy goals, let us examine some features of the system and how they fit into the wider picture, in an attempt to clarify certain misinterpretations. A. It can be argued that the IP system does play a role in developing innovation and creativity. Without going into detail, reference is made to the examples of countries having used IPRs as a strategy for their development in the past fifty years or so, such as Japan, which relied on the patent system as a crucial tool in developing the national economy, 11 or the Republic of Korea. 12 B. A further step is to understand that the IPR system cannot operate in isolation, but that there is a need to establish a strategy that integrates innovation and creativity into national development and other national and global policy goals. The Road Map Towards the Implementation of the United Nations Millennium Declaration, for example, published in September 2001, states that to encourage the pharmaceutical industry to make essential drugs more widely available and affordable by all who need them in developing countries, the UN Member States welcomed national efforts to promote innovation and develop domestic industries. 13 However, the notion of innovation is not limited to pure scientific and technological research, but encompasses a strong innovation culture, enhanced and focused research and development programs, innovative thinking, initiatives to enhance local innovative capacity, new ways of strengthening social networks which harness the power of innovative minds and a national innovation culture that addresses the building up of human resources in research and development,
Realizing Property Rights page / 272 and an increased use of public/private partnerships to mobilize the resources necessary to support the translation of research and creation into useful products and services. This implies that the IP system may not be used in the same way and to the same extent in countries with different levels of development, but rather that governments may first decide to concentrate their resources on creating an innovation culture, and that only thereafter IP can help to turn knowledge and creativity into real assets for a country. C. The next step in securing a functioning IP system in a broader context is to ensure that its basic principles are optimally applied in practice. For example, widely accepted conditions of patentability have been developed precisely to ensure that the system grants patents in respect of those inventions for which a patent right is most likely to serve the public interest. The requirement of novelty has been developed in order to protect the public interest against monopolizing matter which is already in the public domain. The requirement of inventive step aims to ensure that patents are only granted in respect of truly inventive results. The requirement of industrial applicability (or utility in some legal systems) emphasizes the need for patented technology to be of practical value. Another area where similar considerations apply is copyright, where the criterion of individuality or creativity has been developed specifically to ensure that only works translating the individual and creative personality of the author is protected, thus leaving wide room for others to express their creativity. Much of the criticism voiced against the patent system relates to precisely those core principles, for example, where the argument is raised that some patented matter in the areas of genetic resources or traditional knowledge was in fact in the public domain or does not constitute a real invention and should thus not have been the subject of the grant of a patent. One step in addressing some of these concerns is thus to ensure that these basic principles are correctly applied, so that, firstly, the public interest is safeguarded and, secondly, the presumption that granted rights are truly valid when measured against patentability criteria, is increased. While the above principles obviously do not address all of the concerns raised, they may form the basis for further discussion on the possible integration of the IP system into a broader policy framework, encompassing, for example, issues such as access to medicines or the rights of indigenous peoples, which are addressed in the following sections of this contribution. IPRs and public health Much has been said about the IPR system and its relation to public health in past years, in particular in the case of the patent system, ranging from assertions that the pharmaceutical industry would not be able to develop new drugs without a robust patent system to allegations that the patent system kills patients through preventing them from having access to medicines. Such bold statements are to be viewed with caution, since experience
Public Policy Objectives and Intellectual Property Rights page / 273 shows that drug prices depend on a variety of different factors and that access to drugs is not always superior in countries where there is no patent protection for those drugs. But the mere existence of the WTO Doha declaration on TRIPS and Public Health adopted on November 14, 2001, and its follow-up process, which confirmed that countries without manufacturing capabilities can import generic drugs that are still patented and further allowed manufacturing countries to export drugs under a compulsory license even where these drugs are patent-protected on their territory, 14 demonstrates that there is increasing recognition of the necessity to adapt the IP system to specific needs, in particular, by mitigating certain undesired consequences of granted patents. However, in assessing how the patent system can best serve the public interest in the domain of health, it is necessary to first consider its role before grant, and in particular during the development phase of drugs. In this context, it may be useful to mention the different phases of drug development in which the patent system has a function. Firstly, general national and regional innovation policy and legal frameworks in respect of IP, including IP laws themselves and their interaction with other aspects of the regulatory system, such as research exemptions, the use of clinical test data, and the interface between the patent system and drug approval, need to be examined and focused on the national/local needs. Secondly, attention should be given to the input of patent law at different stages of the innovation process, from planning through the product development process and the marketing approval procedure, through to arrangements ensuring the translation of the results, for example, a new drug, to the larger public. In a very general and non-exhaustive way, the role of patents during these phases can be summarized as follows: During project planning, the patent system may play a role in patent policies (ownership, access to research results), in providing information on existing technologies, and in identifying possible competitors and partners. During the research phase, patents can provide a basis for obtaining the necessary funds and background technology, and in initiating negotiations with a view to leading the project beyond the research phase. Concerning clinical trials and the following marketing approval phase of a drug, the protection of undisclosed test data as provided in the WTO TRIPS Agreement may provide an incentive to enter these procedures. Once the product is ready to be marketed, IPRs can contribute by providing access to other technologies necessary for marketing, by branding the product, through licensing policies (including improved partnerships between public research institutions and the private sector), and through general IPR monitoring and enforcement policies. A country that has used IPRs in its national strategy in order to develop a strong biotechnology research and development sector is Cuba. That sector has generated many biotech products and has obtained over a hundred patents. Among other examples, it has developed a most effective meningitis B vaccine which
Realizing Property Rights page / 274 is exported to many countries, as well as a haemophilous influenzae type B vaccine. In conclusion, IPRs seem to have a role to play both as an incentive for innovation and also as a practical tool in the processes just described. It is nevertheless essential not to lose sight of the overarching principle which consists of finding a balance between promoting innovation and ensuring that the results of that innovation are available to the public, in line with the right to health as referred to in Article 25 of the UDHR and in the UN Millennium Development Goals. Against this backdrop, consideration must be given to the regulations governing the use of IPRs in the market place, since within the existing international framework on IP, countries can shape their IP laws, and in particular patent laws, in accordance with their levels of development and individual needs. This may involve taking into account, in particular, aspects such as a sufficient market supply of the patented product, the internationally recognized possibility to grant compulsory licenses, addressing anti-competitive practices in licensing agreements or exceptions to the right such as the research exemption, which allows third parties to use a patented invention for further research. In addition, these considerations may be complemented by assessing the utility of considering the procurement of alternative health technologies or the possibilities of making better use of traditional medicines. Placing the relevant IPRs in the context of such a broader health policy would thus allow use of the system as a tool to contribute to the addressing of urgent and essential health problems, both in the short term and the long term, and to apply tailor-made solutions to specific situations. IPRs and the rights of indigenous peoples Discussions on the rights of indigenous peoples have gained much importance in the past years and have focussed on a wide range of issues touching on intellectual property and related questions. This includes moves to strengthen protection of traditional cultural expressions ( TCEs ), traditional knowledge ( TK ), and genetic resources ( GR ) against misappropriation and misuse. In areas such as biodiversity, medicine, and agriculture, protection against misappropriation includes the call for equitable sharing of benefits deriving from the use of such resources and knowledge. The increased attention to the concerns of indigenous peoples in relation to the IP system has translated into activities in a number of international forums, such as the UN Commission on Human Rights 15 (including work on a draft Declaration on the Rights of Indigenous Peoples 16 ), the Convention on Biological Diversity, 17 the WTO TRIPS Council, UNCTAD, UNESCO, the FAO and WIPO, among others. In this debate, attention has also been given to the relationship between human rights and IP protection of indigenous rights, mainly because appropriation of TCEs, TK and GR for commercial exploitation by others without consent or just compensation was considered to conflict with the right of self-determination and
Public Policy Objectives and Intellectual Property Rights page / 275 the cultural integrity of indigenous people over their resources and cultural heritage, with the principle that economic and social exploitation must be prevented. The comments made earlier in connection with UDHR Article 27 have also been put forward in relation to the rights of indigenous peoples. Various aspects are involved in the interface between IPRs and rights of indigenous peoples, ranging from viewing IPRs as a useful instrument for the creation and conservation of TK, GR, and TCEs and as a tool for implementing a benefitsharing arising from the use of TK/GR, to more critical voices raising the issues of potential trivialization of traditional cultures, increases in the cost of products, possible misappropriation of GR/TK, and the conflict between IPRs and the cultural values and moral perception of many populations. Not all countries and cultures share the same understanding of property, and even less of IP. For example, some do not acknowledge the concept of individual private property, but apply collective models of ownership; for some, ownership is inappropriate as customary laws and social values favor ideas such as custodianship, that are defined as much by responsibilities to past and future generations, others reject exclusive property rights over living matter, and yet others are not against property in principle, but aim to prevent appropriation of their resources by others. Again, as noted above, there is a perceived conflict between indigenous rights and IPRs: for example, as many IP systems recognize rights on inventions pertaining to living matter (although to different extents). Or, in conventional patent systems, matter known to the public would belong to the so-called public domain, thus preventing their protection through IPRs and allowing their free use by anyone. But perhaps worse for the people concerned, the concept of public domain associated with traditional IP laws has allowed for the appropriation of GR and TK for the development of inventions that are subsequently patented. The IP system has thus been considered as having negative consequences for the rights of indigenous peoples. The rights of indigenous peoples also depend on, and interact with, a wide range of non-ip measures and policies, such as land tenure, environmental laws, protection of endangered species, health, food and agriculture, water quality, cultural heritage protection, religious expression, access to and exploitation of natural resources, environmental management, and soil conservation. Within this broad framework, IPRs may play a positive role in encouraging creation or protection of indigenous rights, subject to the strict application of the core principles of IPRs, as described in the context of public health. Such a role includes, for example, the protection and disclosure of new intellectual creations through the laws of patents and industrial designs or avoiding confusion and deception and preventing unfair competition through the protection of trademarks and geographical indications. Equally relevant are the safeguarding of the integrity of, and rights of attribution to, certain works and creations through
Realizing Property Rights page / 276 moral rights protection in copyright, and the protection of undisclosed information from use or appropriation in bad faith. One example illustrating the use of IPRs in the protection of TK relates to traditional medicines in the People s Republic of China, in respect of which several thousand patents have been granted in past years. Notwithstanding these useful aspects, some questions remain open: first, conventional IPRs might fall short of covering situations where the resource, knowledge or cultural expression is already publicly known. In this case, the question as to the creation of sui generis systems of protection arises. Secondly, the role of IPRs in both positive protection (aiming to obtain and exercise rights) and negative protection (directed at preventing others from obtaining illegitimate rights) needs to be evaluated. Thirdly, existing and future systems must ensure that they do not contribute to an undue misappropriation of certain intellectual assets of indigenous peoples. In addition, because GR/TK and TCEs are often exploited in countries different from the countries of origin, there are calls to establish international instruments that take account of the intangible and cross-boundary nature of those components of indigenous life and heritage. This will require examination of some complex issues, such as the question of ownership/custodianship of the rights, the form of protection to be granted (existing IPRs, sui generis rights, or a mixture of both), ways for ensuring nationals of one country to enjoy rights in foreign countries, the question of fair and equitable benefitsharing in the international context, the recognition of personal or moral rights of indigenous peoples ensuring that known resources or knowledge already in the public domain cannot be subject to IPRs, and the need for enhanced international cooperation in areas such as mutual information, registration, and management of rights, among others. It goes without saying that any action in this area must reflect the actual aspirations and needs of indigenous peoples. An approach taking into account these various aspects would arguably contribute to reconciling IPRs and the rights of indigenous peoples. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore ( IGC ), established by WIPO Member States in 2000, is one international body which has adopted such an inclusive approach. 18 Since its creation, the IGC has been working on a number of issues, including exploring the potential of protecting the rights of indigenous peoples through conventional IPRs and through sui generis systems, working towards an understanding of how best to protect TK and TCEs against misappropriation, clarifying issues such as the positive and negative protection, and working on a better understanding of the international dimension of such protection. The IGC works in close cooperation with other forums, in the area of protection of genetic resources, for example, with the CBD and the FAO. More recently, many participants in the IGC have called for specific international legal instruments to achieve the goal of
Public Policy Objectives and Intellectual Property Rights page / 277 supporting the holders of TK and TCEs in exercising greater authority over how these essential elements of their cultural identity are used, and to reinforce their legal recognition. While discussions are still going on, the IGC process has resulted in draft objectives and principles for the legal protection of TK and TCEs against misappropriation and misuse, which are currently the subject of consultations in many countries. 19 The IGC has taken concrete steps to enhance the role of indigenous and local communities in its work: for instance, its meetings now commence with panel sessions, chaired by an indigenous leader, concerning the needs and expectations of indigenous and local communities; many representatives of TK and TCE holding communities are accredited as observers, and their perspectives directly influence the shape of IGC draft materials; and a voluntary fund is being established to provide direct financial support to enhance their participation. Conclusion The IP system is a unique domain insofar as it grants rights on intangible assets, which have become increasingly important in a knowledge-based economy. However, the system should not be looked at in isolation from the broader context in which it operates. A merely rhetorical invocation of human rights in connection with IPRs does not suffice to respond to the criticism voiced against IPRs, nor does the unconditional rejection of the IP system contribute to productive results. What is needed is an objective assessment of the role of the IP system as a policy instrument for boosting innovation and creativity, coupled with a discussion as to how the system should best be applied in order to ensure that the results of innovation and creativity are accessible to as many people as possible, as to which policy objectives it may interact with, and as to the impact it has on the needs of different countries. This discussion will require addressing both the useful aspects of the IP system and any undesirable consequences it may have. The international community is still feeling its way towards such an integrated approach, but recent efforts in international bodies have shown that there is a willingness to acknowledge that the IP system is not an end in itself, but rather that it can contribute to achieving important policy goals in areas such as public health or the protection of indigenous knowledge. This requires that all concerned remain focussed on working towards a well-functioning IP system, taking into account the need for balance with the public interest and maintaining flexibility where necessary. Such an approach will undoubtedly generate more promising results for all involved, rather than engaging in an infertile confrontation of principles. In this spirit, the IP system can serve a variety of goals in the context of both innovation and creativity as well as of fundamental human rights.
Notes page / 309 Households in Bangladesh: Does the Gender of the Participants Matter? Journal of Political Economy 106/5, 1998, p. 958 96. D. Rajasekhar, Problems and Prospects of Group Lending in NGO Credit Programmes in India, Savings and Development 20/1, 1996. J. Reinke, How to Lend Like Mad and Make a Profit: A Micro-Credit Paradigm Versus the Start-Up Fund in South Africa, Journal of Development Studies 34/3, 1998, p. 44 61. H. de Soto, Opportunity International Interview with Hernando de Soto, February 2005, Opportunity International United States of America, at: www.opportunity.org. Soto, Hernando de, The Other Path: The Invisible Revolution in the Third World, New York 1990. J. E. Stiglitz & J. Weiss, Credit Rationing in Markets with Imperfect Information, American Economic Review 71/3, 1981, p. 393 410. J. E. Stiglitz, 1990. Peer Monitoring and Credit Markets, World Bank Economic Review 4/3, 1990, p. 351 66. M. Zeller, Determinants of Repayment Performance in Credit Groups: The Role of Program Design, Intragroup Risk Pooling, and Social Cohesion, Economic Development and Cultural Change, April 1998. Public Policy Objectives and Intellectual Property Rights The examples of public health and indigenous peoples Philippe Baechtold 1 The views expressed in this article reflect the personal views of the author and do not necessarily represent those of WIPO. 2 Mark Getty, The Economist, August 2000. 3 Brian Martin, Against Intellectual Property, in: Philosophy and Social Action, Vol. 21, No. 3, July-September 1995, pp. 7 22. 4 Web site of the Action Group on Erosion, Technology and Concentration, http://www.etcgroup.org/article.asp?newsid=172. 5 Universal Declaration of Human Rights of December 8, 1948, General Assembly Resolution 217A(III), http://www.unhchr.ch/udhr/ lang/eng.htm. 6 International Covenant on Economic, Social and Cultural Rights of December 1966, General Assembly Resolution 2200A (XXI). 7 For a recent overview, Helfer, Laurence R., Human Rights and Intellectual Property: Conflict or Coexistence? Minnesota Intellectual Property Review, Fall 2003. The UN Committee on Economic, Social and Cultural Rights, for example, has held discussions on the impact of intellectual property (IP) rules on human rights, most lately at its 35th session held from November 7 to 25, 2005, at which it adopted General Comment No. 17 on Art. 15, par. 1(c) of the International Covenant on Economic, Social and Cultural Rights, see http://www.ohchr.org/english/ bodies/cescr/docs/gc17.doc. 8 Propriété intellectuelle in French, geistiges Eigentum in German, propiedad intelectual in Spanish, etc.
Realizing Property Rights page / 310 9 See, for example, Peter Drahos, A Philosophy of Intellectual Property, Dartmouth, Aldershot 1996. 10 http://www.un.org/millenniumgoals/ 11 For further details, see for example Intellectual Property Policies for the Twenty-First Century: the Japanese Experience in Wealth Creation, Hisamitsu Arai (former Commissioner of the Japanese Patent Office), WIPO publication 1999. 12 See, for example, Working Towards Successful Role of Patents: The Business of Patent Technology Considering Some Successful Cases, Korean Intellectual Property Office, 2003. 13 http://daccessdds.un.org/doc/undoc/ GEN/N01/526/07/PDF/N0152607.pdf?, visited on April 12, 2005. 14 For an overview of the Doha Declaration and Pictures / For having kindly permitted us the use of their photographs, we thank: Page 78/79: Satellite imagery used with permission from DigitalGlobe and Google Page 82: REUTERS Page 94: Rhodri Williams Pages 155/156: FM Center - Venezuela Page 188 top: Christine Bichsel, 2005 Page 188 bottom: Eva Ludi, 2004 Page 191: Christine Bichsel, 2003 Pages 249 254: Naoko Felder-Kuzu Page 257: Ivo Felder its follow-up process, see website of the World Trade Organization (WTO): http:// www.wto.org/english/tratop_e/trips_e/ pharmpatent_e.htm. 15 http://www.unhchr.ch/html/menu2/2/chr. htm. 16 http://www.usask.ca/nativelaw/ddir.html. 17 Convention on Biological Diversity (CBD) of June 5, 1992, http://www.biodiv.org/convention/articles.aspsp. 18 Work and documents of the IGC can be found at: http://www.wipo.int/tk/en/igc/. 19 For further details, see documents of the eighth session of the IGC at http://www.wipo.int/ meetings/en/details.jsp?meeting_id=7130.