[Lac] [Fwd: [PSL-Brasil] acesso ao conhecimento, Brasil, Lula, sw livre]

Wed May 4 20:53:31 BST 2005

-------- Mensagem encaminhada --------
De: Pedro de Paranagua Moniz <pedro_paranagua at yahoo.com.br>
Responder-A: Projeto Software Livre BRASIL 

sei que alguns nao leem ingles, mas este artigo, de menos de 2.500 
palavras, é uma síntese do que está acontecendo em questao de política 
de propriedade intelectual, envolvendo, portanto, sw livre.

peter drahos, o autor, é excelente, e conclui por dizer que o brasil e o 
lula sao grandes peças no presente/futuro da sociedade do conhecimento. 
(logicamente, parte da "energia criativa" do brasil está nesta lista de 
discussoes, gente que produz software).

boa leitura e reflitam sobre o que ele fala.

[]s

pedro (paranaguá).

*Access to Knowledge: Time for a Treaty?*

/Peter Drahos/

Knowledge underpins everything, including economies. As the World Bank 
observes: ‘We now see economic development as less like the construction 
business and more like education in the broad and comprehensive sense 
that covers knowledge, institutions, and culture’.1

Despite the importance of knowledge, few key multilateral organisations 
are seriously addressing the issue of how institutions of knowledge 
might be better designed to meet the goals of achieving basic freedoms 
and economic development for the world’s poor. The current work of the 
WTO on intellectual property is modest to say the least. The meandering 
discussion on the relationship between intellectual property rights, 
biodiversity and traditional knowledge continues in WIPO and the WTO. 
Reports from the CBD about the progressive extinction of traditional 
people and the loss of traditional knowledge come and go.2 The WTO’s 
agreed text on what is ironically called the paragraph 6 solution to the 
problem of compulsory licensing and access to medicines is full of the 
kind of uncertainties in which lawyers delight and which commercial 
people avoid.3 Developing country claims receive symbolic attention and 
soft law solutions wrapped in the polite language of false concern. 
Western powers solve their problems through hard treaty law that is born 
of realist maneuverings in a world where commercial and security 
interests have been united.

But profound shifts in the governance of knowledge are taking place. 
Bilateral agreements on intellectual property, services and investment 
are securing standards that would have been thought unattainable during 
the course of the Uruguay Round (1986-1993). This process is making use 
of the efficiency savings of the MFN principle. Each new bilateral 
agreement that sets higher standards of intellectual property is picked 
up by Article 4 (the MFN clause) of the Agreement on the Trade-Related 
Aspects of Intellectual Property Rights. The savings of MFN become 
significant as more states enter into agreements with the US. With, for 
example, thirty states only 29 bilateral agreements are needed to spread 
the same IP standards amongst all the states. Without MFN, 435 
agreements would be needed. A set of US-EU defined standards of 
intellectual property protection are rapidly encircling the globe.

Developing country resistance to this emerging paradigm of globalised 
intellectual property rights is essentially a story of failure. 
International organisations in which developing countries have been 
influential such as UNCTAD and UNESCO have not been able to make 
significant gains in terms of international treaty making on key 
developing country issues such as technology transfer, the control of 
anticompetitive conduct or, more broadly, an economic framework that 
addresses the deep structural inequalities of the world economy.4 
Political landmarks of the 1970s like the New International Economic 
Order have drifted into the footnotes of history. Comparatively modest 
multilateral gains like the Doha Declaration on TRIPS and Public Health 
have all too easily been bilaterally given away. A different concrete 
world order has come striding out of the shadows of globalisation, one 
in which developing countries continue to remain bit players.

The table opposite – on the G-20, ex-G-20, the Cairns Group members that 
have FTAs with the US – shows that the Roman maxim, /divide et impera 
/has lost none of its truth for the practice of empire. Two observations 
are particularly worth noting. First, the leaders of the G-20 (the 
countries in bold) that proved to be an effective oppositional force to 
the US and the EU at the WTO Cancun Ministerial in 2003 are being 
progressively isolated. Second, the terms of a possible deal on 
agriculture in the WTO are being shaped by a series of FTAs in which 
leaders of agricultural exporting nations like Australia are willingly 
participating.

Key factors that explain the negotiating failures of developing 
countries are a lack of trust amongst developing country groups, a 
myopic focus on single issues rather than the game in aggregate, 
insufficient political support from the capitals for negotiators, 
inadequate technical analyses of issues, a failure of co-ordination 
across and within bilateral and multilateral for a and, finally, a lack 
of boldness of vision.5

All of these factors can, of course, be changed. Of those on the list it 
is perhaps the last that needs to be addressed first. Whatever the deep 
determinants of radical change, rarely in history is it not accompanied 
by an act of inscription in which words carry visionary ideals in 
defiant flight of established authority. Martin Luther’s writings did 
not cause the Reformation and Thomas Paine did not through his writings 
cause America to achieve independence, but both helped to inspire people 
to talk about and fight for independence of different kinds. For 
developing countries the coming century of knowledge-based growth raises two

basic development priorities. The first is

that these countries must give more urgent

attention to encouraging investment in

human capital and this essentially translates

into investment in health and education.

The second basic priority is to think creatively

about models of governance for the

production of knowledge that maximise the

participation of developing countries in the

processes of innovation, that maximise the

spillover benefits of knowledge and that

minimise the social cost of accumulating

knowledge.

One strategy for meeting the second priority

is to draft a framework agreement that

contains guiding principles on access to

knowledge.6 Framework agreements have

proved to be surprisingly effective over the

decades as means of getting states to agree

to general principles that then evolve into

more specific and enforceable obligations.7

A framework treaty on access to knowledge

would be a tough test of developing country

cooperation over the long distance of

an international negotiation. Intellectual

property rights along with terrorism, narcotics

and people trafficking are the four

key targets for the US in any international

negotiation. On intellectual property the

US has only been prepared to negotiate

higher standards of protection. Calls by

organisations like the World Bank to

‘rebalance’ TRIPS have been drowned out

in US corridors of power by the footfalls of

corporate lobbyists bearing cheques for

campaign re-election. With their epicenter

in Washington, waves of intellectual property

protection race like distant tsunamis

towards the shores of developing countries.

Despite the projection of US invincibility

on the issue of intellectual property a framework

treaty on access to knowledge is still

worth fighting for. Such a treaty would at

least offer developing countries some longer

term vision of their development interests, as well as an opportunity to 
build a coalition around the issue of knowledge and development. 
Developing countries have numbers, but not unity and co-ordination. 
Creating another opportunity for these two things to emerge is in itself 
a worthwhile goal.

An initiative to produce a draft of a treaty on access to knowledge is 
currently being led by a coalition of civil society actors. This 
initiative flows out of a WIPO General Assembly decision to examine 
proposals for a development agenda that were put forward by Argentina 
and Brazil in 2004.8 A treaty on access to knowledge was a key part of 
those proposals. Civil society actors have pushed the treaty initiative 
along by suggesting some topics that the treaty should cover.9 In 
February 2005 a meeting of interested parties in Geneva had a 
wideranging discussion about the standards that such a treaty might 
contain. Out of the discussions thus far have come a variety of 
proposals on matters such as the implementation of the Doha Declaration 
on TRIPS and Public Health, the need for entrenched exceptions in 
copyright and patent law to ensure access for various groups and rules 
for the promotion of access to publicly funded research.

As the civil society coalition around the draft treaty builds, more and 
more proposals will find their way into the draft. The treaty might end 
up taking the form of a comprehensive and detailed set of rules written 
from multiple perspectives and goals. Detailed intellectual property 
rules typically create winners and losers and so veto coalitions are 
more or less certain to form. There is also the complication that as 
states become parties to an increasing number of treaties that cover 
intellectual property their capacity to entrench treaty-based exceptions 
to higher standards of intellectual property lessens. Finally, there is 
the basic geo-political reality that the US and EU have concentrated and 
influential industry interests that benefit from increased intellectual 
property protectionism and so both have reasons to support protectionist 
intellectual property policies.

A detailed rules-based treaty is not, of course, the only option. 
Another possibility is to draft a simple treaty containing a few general 
principles built around the rights to health and education and the 
commitment to open source innovation. This part of the treaty could 
essentially be declarative in nature, drawing on the existing human 
rights framework and restating principles already widely accepted.

The many complex issues raised by intellectual property, public goods, 
research and development and innovation could each become the subject of 
an annex in the treaty. So, for example, here could be an Annex on 
technical standards and intellectual property, an Annex on open source 
innovation in software, an Annex on education, libraries and copyright, 
an Annex on open source innovation in the life sciences, an Annex on 
technology transfer and so on.

The responsibility for the development of the standards in each annex 
would rest with a group of technical experts in the relevant field. 
Representation in these groups would not be state-based, but rather 
based on a commitment to a genuine evidence-based approach to 
development and intellectual property. This last criterion is vital 
since what has passed for intellectual property policy and development 
over the decades has in the main consisted of organisations like WIPO 
sending missionaries to convert the ‘uncivilised’ economies of the 
South. The time to end this faith-based approach has well and truly arrived.

The standards in each annex could, at least in the beginning, simply be 
issued in the form of recommended practices. (The International Civil 
Aviation Organisation, for example, issues some of its standards as 
recommended practices.) This would leave states with the freedom to 
choose those standards that were consistent with their overall treaty 
obligations. It would also provide them with expert guidance as to the 
kind of norm-setting they should be contemplating in order to maximise 
their chances of innovation-based growth and the social welfare of their 
populations. This softer approach would be one way of maximising support 
for the treaty process. Over time the recommended practices might become 
binding standards by means of, for example, an opt out procedure in 
which the standards applied to a state unless it opted out. The binding 
nature of the treaty’s standards, in other words, is something that 
could be built over time.

Although the treaty proposal arises in the context of an emerging 
development agenda for WIPO, its future course is not necessarily tied 
to what happens there. In one view, WIPO is an organisation that has 
been irredeemably compromised by western powers bent on making trade 
gains from intellectual property. If WIPO proves an inhospitable forum 
then developing countries should consider an alternative, even if it 
means using the treaty to constitute a new one. There is much to gain 
from the adoption of a deep US cultural value – self-reliance. A 
remarkable historical opportunity is presenting itself. If one looks at 
the technologies of the 19th and 20th centuries such as radio, telephone 
and telegraph, standards-setting was dominated by the US government 
regulated private monopolies such as ATT and the public monopolies of 
the European post, telephone and telegraph system. Developing countries 
were simply not players in international organisations like the 
International Telecommunication Union. Open source innovation is about 
networked innovation by a geographically distributed community that 
works with a technology and seeks to build collectively a better 
technology. That approach to innovation is inherently more participatory 
and one that advantages developing countries that have low-cost, 
highly-trained knowledge workers.

Finally, it should be said that the success of a treaty on access to 
knowledge depends profoundly on the involvement of business, especially 
that segment of business entrepreneurship that sees in open source 
innovation the possibility of business models that will drive the 
knowledge markets of the 21st century. Much of that new entrepreneurship 
resides in the US. A treaty on access to knowledge should, through its 
committees of technical experts, draw on the insights of that 
entrepreneurship and foster the growth of networks that stretch across 
developed and developing countries.

The fate of the treaty will depend heavily on the leadership of a few. 
The moral strength and determination of Nelson Mandela strides across 
the landscape of the twentieth century, a brilliant reminder of what a 
real leadership of values can accomplish against injustice. If 
developing countries are to take a stand on the governance of knowledge 
and make laws that address the structural injustices of the present 
regime, *much will depend on the creative energies of Brazil and 
President Lula* and thoughtful multilateral diplomacy of the kind 
practiced by Norway. Even more important will be China’s beliefs about 
the rights and duties of owners of knowledge.

/Peter Drahos is Professor in the Law Programme at the Research School 
of Social Sciences, Australian/

/National University and a member of the Regulatory Institutions Network./

http://www.ictsd.org/monthly/bridges/BRIDGES9-4.pdf Bridges, year 9, no. 
4, April 2005, pp. 15-17, published by ICTSD.

ENDNOTES

1 Joseph Stiglitz in Gerald M. Meier, ‘Introduction: Ideas for 
Development’, Gerald M. Meier,

Joseph E. Stiglitz (eds), Frontiers of Development Economics, OUP, 
Oxford, 2001, 1,2.

2 See Composite Report on the Status and Trends Regarding the Knowledge, 
Innovations and

Practices of Indigenous and Local Communities Relevant to the 
Conservation and Sustainable

Use of Biodiversity, UNEP/CBD/WG8J/3/4, p.6.

3 See Brook K. Baker, ‘Arthritic Flexibilities for Accessing Medicines: 
Analysis of WTO Action

Regarding Paragraph 6 of the Doha Declaration on the TRIPS Agreement and 
Public Health’,

14 (2004) Indiana International & Comparative Law Review, 613.

4 P. Drahos, ‘Developing Countries and International Intellectual 
Property Standard-Setting’,

’ 5 (2002) Journal of World Intellectual Property, 765.

5 For a general discussion see P. Drahos, ‘When the Weak Bargain with 
the Strong: Negotiations

in the World Trade Organisation’, (2003) 8 International Negotiation, 79.

6 A proposal for a draft treaty is to be found in P. Drahos, ‘The Global 
Ratchet for Intellectual

Property Rights: Why it Fails as Policy and What Should be Done About It’.

7 J. Braithwaite and P. Drahos, Global Business Regulation, Cambridge 
University Press,

Cambridge, 2000, 620.

8 See General Assembly Decision on a Development Agenda, October 4, 
2004. The proposal

by Argentina and Brazil is in document WO/GA/31/11, August 27, 2004.

9 See Civil Society Coalition Statement on WIPO General Assembly 
Decision on a Development

Agenda, October 4, 2004 available at http://www.cptech.org/a2k/

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