Which Way at WIPO?

The World Intellectual Property Organization (WIPO) is a UN-affiliated multilateral body that administers most of the global intellectual property agreements and treaties, provides a forum for analysis and discussion of current issues and new treaties, and education and technical support for poorer countries’ governments. On paper, it sounds great. For several decades it was great. More recently, the majority of countries have turned the purposes of WIPO upside down looking for any opportunity to chip away at the foundations of intellectual property. It has gotten to the point where achieving gridlock is considered success. There are no easy fixes here, but I do have some ideas.

Why Is It So Bad?

As I wrote previously, the inclusion of intellectual property provisions in World Trade Organization obligations fundamentally shifted decision-making from IP experts to trade policy experts. I think it is fair to say that the trade agency/ministry in every country is more influential than IP agencies/ministries. That means even the IP experts who attend WIPO meetings are under instructions heavily influenced by trade considerations. There are a lot more countries that are net importers of IP-intensive products than there are net exporters. As a result, at least since the mid-1990s the majority of countries at WIPO are looking to weaken IP rules as a path to cheaper products and services for their consumers and an improvement in their balance of trade.

It isn’t difficult to see how this short-term thinking is self-defeating in the long run. Intellectual property protection promotes economic growth, job creation, and innovation. If a country fails to provide an adequate and effective IP system, it may enjoy short-term benefits but it condemns itself to innovation stagnation. It is as basic as the old parable: give a man a fish and he eats for a day, teach a man to fish and he eats for a lifetime. The sad reality is that with occasional exceptions, most political leaders in developing countries choose the short term benefit for instant gratification.

In addition, WIPO and its member nations are constantly lobbied by anti-IP organizations. The groups range from anti-capitalist extremists to self-appointed “consumer advocates” to academics. They play a steady drumbeat of anti-IP rhetoric, focusing on the opportunity to take what has been created for less (or for free), with considerably less regard for thinking through how the next generation of products and services will be created and offered to the public if companies can’t get a sufficient return on their investments.

The result is that at every level people are trying to influence the WIPO staff (known as the Secretariat) to lean against the intellectual property the organization was founded to promote. When WIPO has a panel discussion or provide training to the government of a developing country, they try to stack the panel with IP skeptics and emphasize limiting IP protection. When WIPO commissions a study, they seek to have a like-minded academic write it. When governments meet to discuss current issues, they offer proposals to weaken existing IP rules and try to clog the agenda with their perspective.

How Can We Fix It?

The response of the U.S. government and IP-intensive industries is to try to counter with a positive IP agenda and to address concerns about imbalanced WIPO presentations directly with WIPO leadership. This has had some positive effects. There are other pro-IP countries, as well. Many of the developed countries have both an economic stake in promoting IP as well as the recognition of the long-term benefits of an effective IP system. While those alliances are often productive, there can be breaks in particular circumstances, depending on national interest. Also, it is a universal truth that even like-minded governments will sit on their hands and let the U.S. delegation be the one that stands up to make the statements that they know are true but are unpopular in the room.

There are always some who want to quit the whole scene or at least threaten to pull U.S. funding for WIPO. It can be tempting. For example, many of the delegates from developing countries have their travel paid for by WIPO. In essence, the United States is paying in and at least some of that money is being used to bring in people who will argue against our interests. Sounds crazy, right?

Disengaging means that WIPO will proceed without taking our interests into account. I don’t think that’s the right approach. Threatening to cut off funding comes across as a child throwing a temper tantrum; it isn’t an effective strategy. That said, I do think there are reforms the U.S. government should push for, including reducing the boondoggle budget at WIPO. But if we really want to change the atmosphere, we need to be smart and patient.

Long-Term Success Requires Long-Term Commitment

Many of the anti-IP advocates employ a strategy that has proven effective over time. It is common when there is a conference or especially a meeting of government officials to have some sort of agreed statement at the end. That statement is purely hortatory and doesn’t bind anyone to anything. But the groups make sure to slip in their messaging.

Instead of a statement that “intellectual property promotes economic growth,” they will seek to add the word “balanced” at the beginning. Sounds innocuous, right? Balance is always good. But they are introducing the concept that IP needs to be limited, that it has a downside. At another conference the next year, they’ll point out how everyone agreed that balance is needed and propose a statement that “balanced intellectual property can promote economic growth.” The year after that, they’ll cite the previous agreed statements and propose “limited protection for intellectual property, balanced with protections for consumers, can be beneficial.” And so on and so on, until one day we find ourselves considering a new treaty to roll back IP protections. This incrementalism feeds on human nature and the desire not to be the one holdout in the room, and it has been successful.

There is no reason why the IP-intensive business sectors cannot engage in the same strategy. At major conferences, they should have someone there pushing for gently-worded language that highlights the benefits of effective intellectual property protection. That takes resources. While U.S. industry has substantial resources, the nature of corporate decision-making is that those resources are devoted primarily to the immediate problems identified by corporate leadership. A long-range project as I am suggesting is immediately recognized as the right approach by the working-level people, but they can’t get approval for funding for it from the higher-ups. It’s a shame because if even just a few companies pooled resources, it would be a comparatively small expenditure for each.

Conclusion

WIPO leadership is inherently political and they respond to their constituents, the Member countries. While the United States has only one vote in the formal sessions, our government has influence in proportion to our economic strength. Likewise, U.S. IP-intensive industries lead the world and can make a real difference. In both cases, it requires foresight, patience, and the will to see it through. WIPO is not unfixable but we have to approach the problem in the right way.