Nongovernmental Organisations, Developing Countries, and the
Globalisation of IPRs: A Network Approach
Ben Prickril
（Know IP - The Stockholm Network’s Monthly IPR Journal
Volume 3: Issue 1. January 2007）
The past five years have seen an enormous growth of globalisation, and there are few signs that this growth will slow anytime soon. Intellectual property rights have played an important part in enabling this growth, especially in the areas of trade, health and agriculture. However, the landscape with respect to IPRs is uneven between developed and developing countries, and serious efforts at all levels ¨C most notably through the WTO and the TRIPS Agreement ¨C have attempted to deal with these differences. A number of international nongovernmental organisations (NGOs) have long been involved with these issues at the policy and advocacy levels in important areas such as access to medicines.? Disparities between developed and developing countries are also being addressed by a number of newer and innovative NGOs specializing in providing IPR services directly to developing countries. This article focuses on the growing influence of these newer NGOs, and suggests that they develop a more globalized and networked approach to the use of IPRs to benefit developing countries.
Before looking at NGOs and IPRs for developing countries in any detail, it is worth briefly discussing why it is important for developing countries to address intellectual property issues within the framework used by intermediate and developed economies. There is currently much debate about the need within indigenous communities and, more generally within developing countries, for intellectual property systems, when these countries are ill-equipped to implement and enforce such systems. Although there are compelling arguments for some restriction of IP protection in developing countries when it is in the public interest (compulsory licensing, for example), it is essential that the international norms for IP protection are generally consistent between developed and developing countries. But as the TRIPS debate and WIPO development agenda have shown, striking this overall balance is extremely difficult.
In order to address the real IPR needs of developing countries, world bodies such as the WIPO, WTO, WHO and the World Bank have implemented policies and promulgated rules. These inter-governmental organisations are often ill-equipped to serve the immediate IPR needs of communities and individuals in developing countries, and a range of organisations including foundations, NGOs and private sector participants have stepped in to fill the gap. A number of NGOs have been particularly effective in directly addressing IPR disparities between developed and developing countries due to their ability to mobilize and adapt quickly to a wide range of needs at a practical, project- oriented level. Examples of this include Public Interest Intellectual Property Advisors (PIIPA), which provide direct legal services on a pro bono basis to developing countries: Centre for the Management of Intellectual Property in Health and Development (MIHR), which provides developing country training and outreach services: and the International Intellectual Property Institute (IIPI), a think tank which promotes awareness of IPRs in developing countries. Several other NGOs are involved in developing country IPRs, and hundreds more are directly affected by IPR issues in developing countries.
There are two major challenges to meeting the growing need for effective IPR systems in developing countries. The first is simply the enormity of the task of addressing these needs. IPRs play an essential role within developing countries, as well as within a very large number of organisations having a direct impact on them, but are at times seen as not helping to improving the lives of the poor. One example is provided in the context of the anti-malarial drug artemisinin. This drug, derived from a wormwood bush (Artemisia annua) native to China, is now the preferred anti-malarial. Artemisinin and certain derivatives are highly effective, and are administered in combination with another anti- malarial drug in order to prevent disease recurrence and possible drug resistance. These drugs are being produced at a low cost, and therefore being made available to developing countries through innovative initiatives by Novartis, the Drugs for Neglected Diseases Initiative, Sanofi-Aventis, and others.? Although artemisinin itself cannot be patented, the IPR issues surrounding the introduction of the combination therapy remain significant because pharmaceutical companies producing the drugs still depend on patents to derivatives and combination therapies to maintain a market in developed countries. Controversy will surely continue to surround artemisinin-based anti- malarial, and IPR issues will just as surely form a backdrop to this controversy. Unfortunately, misunderstandings and controversy surrounding IPRs in this and other examples tends to obscure the advantages derived from robust intellectual property systems, especially in developing countries, including greater transparency and the ability to challenge intellectual property practices viewed as unfair or illegal. Indeed, helping developing countries to increase their own IPR capacity, that is, a strong and viable system of IPRs, is an universal goal for NGOs involved in IPRs for developing countries.
The second challenge to meeting the IPR needs of developing countries is changing the current paradigm under which NGOs operate in parallel in a networked and globalised world. Put another way, NGOs are working to accomplish their mission and become self-sustaining in an environment which cries out for closer cooperation with similar organisations. The reasons for this disparity are primarily the following:
Many of these organisations are less than five years old and have insufficient resources to develop effective networks with similar organisations.
The field of IP is inherently complex, and it takes time to find, educate, and partner with other organisations, especially with those whose mission does not address IPRs directly. NGOs in the IP field occupy a narrow niche compared with most NGOs, whose services are readily understood and accepted as ‘good’ for developing countries.
Funding for NGOs that concentrate on developing country IPRs is sparse, perhaps due to a lack of clarity regarding the benefits that accrue from strengthening the IP capacity in developing countries.
Despite these obstacles, NGOs addressing IPR issues are increasingly working together in areas where their missions overlap. Examples of this include cooperation in assembling written training materials, sharing advice concerning contacts and organisations dealing with IPRs in developing countries, and cooperative initiatives on targeted projects. In addition to increasing these types of cooperation, it is likely that these organisations will be looking to partner with individuals and organisations within developing countries as well in order to attract funding from a wider variety of sources, including those within the developing countries. This approach offers the advantage of leveraging resources from both the NGO and the partner organisation, but also allows the NGO to establish a presence and a global network through which they are able to provide services with greater sensitivity to local and national needs.
The need for IPR training and services in developing countries is increasingly recognized as essential, and as a result new channels have arisen to facilitate communication among IPR stakeholders, and between these stakeholders and the countries and communities benefiting from them. Only the last two years have witnessed developments which help strengthen IPR systems in developing countries. These include IPR-related resources and training materials made available through the OECD Directorate, the WHO’s Commission on Intellectual Property in Health (CIPIH), large foundations such as the Bill & Melinda Gates Foundation, the NGOs mentioned above, and many others.? As many developing countries are experiencing increased access to electronic and web-based resources, the arrival of free IPR- related web-based resources such as the searchable worldwide database from Cambia’s Patent Lens
( http://www.bios.net/daisy/bios/patentlens.html) and the New York Academy of Sciences ‘Scientists Without Borders’ web portal consolidating research-based and capacity-building projects in the developing world (information at http://www.nyas.org/programs/borders.asp) will spur development of even greater IPR capacity. There is no doubt that the increased worldwide attention and resources devoted to IPR in developing countries contribute substantially to the ultimate goal of improving the livelihood of citizens in developing countries.
