The world has been moving toward uniform standards for patents and copyrights. A new study warns that the poorest nations are likely to suffer unless that trend is stopped.

Eight years after the Uruguay round of trade talks, there’s a growing sense that the developing nations cut a bad deal, particularly on intellectual property rights. The latest critique comes from a high-powered commission, chaired by Stanford Law School Professor John Barton ’68, that calls on the World Trade Organization (WTO) to extend the deadline for the poorest Third World countries to have adopted these rules-by at least 10 years, to 2016 at the very earliest.

That’s just one of several dozen recommendations from the Commission on Intellectual Property Rights, an independent task force established and financed by the British government. Its report, issued in September, quickly created a buzz among top trade officials, with the director generals of both the WTO and the World Intellectual Property Organization (WIPO) attending the publication’s official release in Geneva. The report’s overarching theme is that the world’s intellectual property rights system needs to take account of development concerns and that the present arrangement often costs more than the benefits it produces for the poorest nations. 

It’s too soon to say what impact the commission’s research will have, but its work includes some strong remedies. For one, the report suggests that poor nations have not been well advised on the flexibility that they have in enacting copyright and patent laws, and that they do not necessarily have to use the United States and Western Europe as models. “Many developing countries are not aware of the options they have under these rules,” says Barton, the George F. Osborne Professor ofLaw. The commission believes that developing nations still need to adopt IP regimes, but not the cookie-cutter approach that has been followed. 

A case in point is patenting in agricultural biotechnology. While most developed countries permit this, the report recommends that the poorest countries, at the very least, should restrict such patenting. And the report adds that developing nations can do this and still be in compliance with the Uruguay Agreement on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, which developing nations are supposed to have implemented by 2006.

Of course, some argue that loosening such rules will slow the spread of new technology. Take the corporate giant Monsanto, which refuses to sell certain of its patented bioengineered cotton seeds in India, out of concern that Indian law allows them to be replicated. “It’s a detriment to us to take the technology there if there isn’t a legal system,” says Gary Barton, a company spokesman (not related to Stanford’s Barton). 

This business perspective heavily influenced the talks in Uruguay, but the evidence thatJohn Barton has helped to marshal reveals that a rigid global standard actually hinders technological growth in the Third World. The report points out that the United States in the 19th century, while it was developing into the most technologically advanced nation in the world, did not play by Europe’s intellectual property rules (printers, for instance, were permitted to copy freely foreign books and sell them throughout the country). Similarly, South Korea and Taiwan, during their growth years, had few restrictions on producing knock-offs of imported high-tech items. 

The recent scandals involving the unaffordably high prices of patented AIDS drugs-while the disease reached epidemic proportions in Africa, Asia, and Latin America-have already changed the way the rules are followed. A consensus has recently emerged that in the event of medical crises, patents should be waived, and countries encouraged to buy cheaper generic versions of brand-name drugs. Now Barton and his colleagues on the commission, comprised of an Argentine economist, a top Indian government official, a leading British barrister, and two British scientists, are essentially recommending that the envelope be pushed a bit further.

Barton is no stranger to contentious international debates. He has been an arbitrator in dumping disputes between Canada, Mexico, and the United States. He has overseen studies for the World Bank on intellectual property and biotechnology. And he has researched the legal implications of the trade of genetically engineered rice. He was, however, surprised when Clare Short, a member of parliament and Britain’s Secretary of State for International Development, asked him out of the blue to join the commission and be its chairman. Over the last 18 months, he has overseen the commission’s work, which includes running a series of workshops with leading scholars, reviewing working papers, and interviewing top officials in at least seven nations as well as representatives from WIPO, WTO, the European Union, business groups and nongovernmental organizations. (The report, titled Integrating Intellectual Property Rights and Development Policy, is available at www.iprcommission.org) 

The commission ultimately concludes that the TRIPS agreement may not always be in t1w best interest of poor countries. In addition to highlighting ways that TRIPS and other international arrangements can be friendlier to the Third World, the report also suggests that developing countries be given more time to adhere to the First World’s IP regimes. They were cheered on in their work by the WTO’s new director general, Supacbai Panitchpakdi, who told them that he was troubled by the “conspicuous similarity” between the language in the final TRIPS agreement and the language that was submitted by private associations and corporations. In an interview, Barton does not focus on the role of the business lobby, but acknowledges that international IP negotiations often have one side with vastly more resources than the other. That apparently happened in the Uruguay round. “A lot of the countries didn’t realize many of the details of what they were signing,” Barton says. “I don’t think many of the people realized how much is at stake.” The new report aims to level the playing field, and regardless of its effect, officials in the Third World will have been warned to be very careful when negotiating future deals.