From the League of Nations to the United Nations: One Hundred Years of Multilateralism in Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry

The history of international cooperation in the field of intellectual property is a rich and quite respectably long one. It dates from the 19th Century experiments with institutional cooperation in specialized or technical areas, which saw the birth of the International Telegraph Union, now known as the International Telecommunication Union (ITU), in 1865; the General Postal Union, now known as the Universal Postal Union (UPU), in 1874; the International Meteorological Organization, now the World Meteorological Organization (WMO), in 1879, and the predecessor of the World Intellectual Property Organization (WIPO), under the name of the United International Bureaux for the Protection of Intellectual Property, in 1883. Each of these 19th Century creations, different from an international institutional cooperation in general political affairs, continues today, a testimony to the success and endurance of technical international cooperation.

Two great historical developments lay behind the establishment of multilateral cooperation in the field of intellectual property. The first was the Industrial Revolution. While intellectual property rights existed in various forms well before the Industrial Revolution (for example, the Patent Statute enacted by the Republic of Venice in 1474), it was the transition from artisan to industrial manufacture that laid bare the importance of intellectual property. In mass production, where machines produce many specimens or examples of the same product, real value lay in the technology that could enable the production of a multiplicity of those same items, rather than in the physical property of an individual item produced by an artisan.

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 2 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry

The Industrial Revolution started in the 18th Century, whereas international cooperation in intellectual property only got under way well over 100 years later, in the last part of the 19th Century. If the Industrial Revolution was such an important impetus to international cooperation in intellectual property, why did it take so long for international cooperation to get going?

The Industrial Revolution was concentrated in a small number of countries for a long period. Its spread was slow and uneven. But by the latter half of the 19th Century, most of Europe was industrialized or industrializing, together with the United States of America and a few other sites of activity. The spread of industrial capacity meant that the protection of the technology underlying that capacity was no longer a domestic affair, or one that could be regulated in bilateral relations between a small number of players. Ideas, inventions and technology are highly mobile. If the capacity to understand them and to put them into practice existed in a significant number of countries, they could be imitated or copied in all those countries and used to manufacture the same or similar products to the possible economic detriment of the originator of the ideas or technology.

This possibility of undesired imitation and competition became a greater reality with the advent of the second great historical development that lay behind the establishment of international cooperation in intellectual property, the wave of globalization that spread in the latter half of the 19th Century. Improved communications, notably the telegraph, the telephone and the phonogram, improved transportation, both for people and for goods, through railways and shipping, and increasing trade led to much greater connection between peoples and societies. Technology and, in addition, cultural works, became more vulnerable to predation, to undesired imitation or to unauthorized reproduction as business and trade ventured forth into an opening world.

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 3 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry

The new world of an advancing and increasingly cosmopolitan industrial society needed its showcases. These came in the form of the international expositions, or world fairs. They provided an opportunity for the beau monde to gather and to congratulate itself on the latest achievements of science, technology and human ingenuity. The expositions became increasingly sophisticated. At the 1900 Universal Exposition in Paris, Rudolf Diesel displayed his new engine running on peanut oil. He became known, of course, for the engine, rather than as a visionary of biofuel. Thomas Edison displayed his moving sidewalk (rue de l’avenir), which ran a 3.5 kilometre circle using parallel moving platforms. The award of the Grand Prize to Rudolf Diesel proved to be a prescient choice by the jury.

Some waxed lyrical about the virtues of the openness and transparency brought about by the international expositions. The Special Representative of Massachusetts to the Paris Universal Exposition in 1867, James M. Usher, stated in his Report to the Governor upon his return:

“Intercourse begets knowledge, and knowledge induces trade. An individual or nation sees the evidence of another’s skill and handicraft in certain things, the benefits resulting thence, and each desires to profit by an interchange of articles for pleasure and for use. Genius and enterprise are stimulated, and a laudable emulation is excited, resulting in pecuniary gain and honorable fame to individuals, cheapening the necessaries of life to whole communities, reducing their hours of labor, and improving their condition physically, intellectually, morally, and religiously.”

Others took a more down-to-earth view. A growing movement became concerned to ensure that appropriate recognition and protection be granted to the inventors and enterprises that lay at the origin of the new technological marvels. The idea of internationalizing such protection was born at the Universal Exposition of Vienna in 1873, an idea that was taken up and developed

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 4 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry at the Universal Exposition of Paris in 1878. As the Minister for Agriculture and Commerce of France said on the occasion of the International Conference for the Protection of Industrial Property held in Paris in 1880:

“They considered that it was necessary to put in step the advances of civilization with the conquests of science, and that the time had come, as a corollary of the speed and ease of trade, to protect everywhere the ownership of work against the bold and criminal enterprises of plagiarists, counterfeiters and usurpers of trade names and trademarks.”

After several international conferences sponsored by the French Government, the Convention for the Protection of Industrial Property was successfully concluded in Paris in 1883. It was the foundation convention for multilateral cooperation in the field of intellectual property, covering patents, trademarks, industrial designs and indications of origin, as well as, fittingly, providing for temporary protection for inventions, designs and marks displayed at international exhibitions. The Convention entered into force in 1884, with Belgium, Brazil, France, Italy, Netherlands, Portugal, Spain, Switzerland, Tunisia and the United Kingdom as the original contracting States. Today, 177 States are party to the Paris convention.

Industry was not alone in experiencing the impact of globalization and the fervor for connection and the exchange of ideas and artifacts that globalization engendered. Cultural works became widely available. As the Swiss Federal Councillor, Numa Droz, said in his opening speech at the first meeting of the international conference convened in Berne in 1884 to conclude an international convention for the protection of authors’ rights:

“We are living in a century in which works of literary and artistic genius, regardless of their country of origin, very quickly spread all over the earth, making use of all civilized languages and all forms of reproduction.”

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Innovation, Creativity and Intellectual Property Francis Gurry

He also pointed out, on the same occasion, that the “ first initiative for the holding of this meeting is not due to a government wishing to settle international difficulties, but to the actual writers and artists of all countries and of all languages who have formed an association for the safeguarding and defence of their rights …”

Amongst the ideas that were vigorously discussed in the lead-up to the conclusion of an international convention in the field of literary and artistic works was a theme that would become a consistent thread in the ensuing century in international policy discussions to establish norms for innovation, creativity and intellectual property. This was the dichotomy between, on the one hand, the virtues and advantages of accessibility and, on other hand, the need for an underlying economic model that provided an incentive for, and returned value to, innovators and creators. Accessibility required openness, while the economic model for returning value required restrictions on access in the form of property rights for creators. Victor Hugo, an early militant and icon for protecting cultural works internationally, expressed this dichotomy in his opening speech to the International Literary Congress in 1878: “… let us get down to principles: respect for property. We much accept literary property but, at the same time, we much establish the public domain. The book, as a book, belongs to the author, but as a collection of thoughts, it belongs – and the word is not too broad – to the human race.”

The efforts of authors, supported by their governments, bore fruit in the conclusion of the Berne Convention for the Protection of Literary and Artistic Works in 1886. The Berne Convention provided the second part of the foundation of international cooperation in intellectual property. It led to the merger of the small secretariats of the Paris and Berne Conventions into a single, united secretariat, located in Berne, where it remained until 1960, when it moved to Geneva. Shortly thereafter, in 1967, the Contracting States to the Paris

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 6 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry and Berne Conventions and to the progeny of those conventions, re-invented the machinery of governance of the institution by forming the World Intellectual Property Organization as the successor to the United International Bureaux for the Protection of Intellectual Property.

In the more than 130 years that have followed the conclusion of the Paris and Berne Conventions, there have been many developments in international cooperation in the field of innovation, creativity and intellectual property. These developments have taken place within a context in which the position of IP in the economy and in society has evolved considerably, driven by the intensification of the technological basis of the production, distribution and consumption of economic and cultural goods and services. As technology has become an increasingly important, if not dominant, factor in production, distribution and consumption, property rights in relation to technology have become commensurately more important. IP provides a central element in the business model for investing in and commercializing technology.

In general, there have been three main phases in the evolution of the position of IP in this regard.

The first phase was isolationism. Intellectual property was a world unto itself and nobody outside that world cared too much to intervene. They left it to the specialists. This was the situation for much of the one hundred years that followed the conclusion of the Paris and Berne Conventions. The number of IP applications worldwide scaled to increases in the world economy. As the latter grew, so too did the former, but not disproportionately.

This posture changed in the 1990s, driven by the early stages of the latest wave of globalization that saw trade opening, the use of technology in economic production and distribution becoming more prominent, and commercial activity commencing on the Internet. IP applications worldwide started to increase at a

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 7 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry higher rate than growth in the world economy as a response to the development of the knowledge economy and to the search for IP protection across broader markets as globalization accelerated.

The United States of America, supported by most of the developed countries, moved to include intellectual property rules within the standard framework of the world trading system. The result was the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement), concluded as part of the agreement that led to the formation of the World Trade Organization (WTO) in 1994. For the most part, developing countries were caught off balance, having to negotiate a complex area of public policy with which they were not necessarily fully familiar. Nevertheless, they managed to win recognition of the impact that intellectual property might have on other important areas of public policy, such as health, agriculture and the environment. Article 27(2) of the TRIPs Agreement allowed members of the WTO to exclude from patentability certain inventions where the prevention of their commercial exploitation is considered “necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment”. Intellectual property had moved from isolationism to engagement. Intellectual property policy took into account other areas of public policy. It was not answerable solely to its own policy imperatives.

A third phase commenced sometime in the first decade of the 21st Century. It is perhaps best described as a period of interaction and the search for balance. Not only was the impact of intellectual property on other areas of public policy taken into account, but the possibility of using intellectual property to promote other policies than the innovation imperative began to be countenanced. Examples of this approach are the prohibition of the use of trademarks on tobacco products, or plain packaging, which gave rise to a dispute within WTO that attracted the largest ever number of interested parties to a dispute, and the movement to establish a compulsory international obligation requiring the disclosure of the

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 8 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry source or origin of any genetic resources used in an invention for which a patent is sought. Plain packaging intervened in the IP system to promote health objectives, while compulsory disclosure has been sought to assist in promoting and monitoring the implementation of the principles of prior informed consent and benefit sharing of the Convention on Biological Diversity.

This third phase is in the process of playing out right now. It corresponds to increases in IP applications worldwide that consistently outperform growth in the world economy. It is not without controversy. Many consider that it introduces low-integrity policy-making processes in which IP policy is made for reasons that have nothing to do with the innovation incentive or the establishment of a viable economic model for culture and the creative industries. Whatever view one might take of this latest phase, it may be said, first, that it is testimony to the power and pervasiveness of IP as a public policy, and, secondly, that the development adds a new dimension of complexity to IP policy making.

IP is now everywhere and so it features on the agenda of not only WIPO and WTO, but also the World Health Organization (in innovation and public health or epidemic preparedness), the ITU (in standards and IP, for example), the Food and Agriculture Organization (in the International Treaty on Plant Genetic Resources for Food and Agriculture, for example), and so on. It keeps popping up. And, in so doing, it always recalls the basic question to which Victor Hugo alluded, namely, how to achieve a balance between accessibility or availability, whether of new technology or cultural goods and services, on the one hand, and control of access through property rights that enable innovators and creators to sustain their economic existence, on the other hand.

Within this overall evolution in the position of intellectual property, there have been many sub-plots. A century is a long time, so the identification and selection of which developments have been more important and, even, the historical description of those developments may always be contested. Nevertheless, a

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 9 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry number of trends and developments of significance to the multilateral history of innovation, creativity and IP may be briefly highlighted.

1. An Explosion of Growth Worldwide

Since the origins of multilateral cooperation in innovation and IP there has been an explosion of growth in the use of IP around the world. The numbers speak for themselves. In 1883, on best counts, there were about 50,000 patent applications filed worldwide. In 2017, there were 3.17 million patent applications filed worldwide. It is a similar story for trademarks. In 1883, again on best counts, around 10,000 trademarks applications were filed around the world. In 2017, 12.39 million trademark applications were filed worldwide.

If one looks into these figures, it is apparent that the real shift in activity started in the 1980s. The drivers have been the arrival of the knowledge economy, the arrival of new players, particularly from Asia, as highlighted below, and globalization, which sees enterprises seeking protection in global markets, rather than simply in their domestic markets. So many applications filed in foreign jurisdictions posed the problem of the efficiency of the system for obtaining protection in foreign markets. The Paris Convention dealt with this problem through the establishment of a priority right. The priority right gave applicants a period of 12 months following the filing of the original domestic application during which an application for the same invention, mark or design could be filed in other Contracting States and during which it would be treated in those other countries as if it had been filed on the date on which the original domestic application had been filed.

This was a neat and practical solution for a low-volume world with only a small number of markets of interest. However, a more sophisticated solution was required for a world of increasing international exchanges and the growing dominance of technology. The answer came in the form of the Global IP Systems

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 10 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry that were established by treaties administered by WIPO. Essentially, under these systems, a single international application can be filed in any one of a limited number of languages. That application is considered to be a valid national application in each of the Contracting Parties to the different systems. Furthermore, a number of steps in the processing of the applications are undertaken at the international level, while leaving other steps, including the most important one of deciding whether to grant protection, to the national (or regional) authority.

There are now four such Global IP Systems administered by WIPO. In the chronological order of their establishment, they are the Madrid System for the international registration of marks (the Madrid System), the Hague System for the international registration of industrial designs (the Hague System), the Lisbon System for the international registration and protection of geographical indications and appellations of origin (the Lisbon System) and the Patent Cooperation Treaty (PCT). They have been unqualified successes and have steadily expanded their geographical representation over the years. They are used by all the major enterprises and research institutions of the world, as well as by small and medium enterprises and individuals. They are the source of 94% of the income of WIPO (Member State contributions account for around 4% only of the total revenue of WIPO).

In 2018, there were 253,000 international patent applications filed under the PCT, 61,200 international trademarks applications filed under the Madrid System, 5,429 international design applications filed under the Hague System and the international register of the Lisbon System covered over 1,000 active international registrations of appellations of origin.

In 1994, a new dimension was added to these Global Systems. Given the increasingly international character of IP activity, the number of disputes over IP was likely to rise. At the same time, the need for a specialized venue,

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 11 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry independent of national affiliation, was perceived. In addition, a single alternative dispute-resolution procedure could be used to resolve multijurisdictional disputes that would otherwise involve multiple national court actions. The WIPO Arbitration and Mediation Center was established with these considerations in mind. It has attracted a growing caseload and reputation. In 2018, the Center administered 3,447 Internet domain name disputes and over 60 arbitrations and mediations concerning general IP disputes.

2. Steady Expansion of the Coverage of Intellectual Property

The Paris and Berne Conventions started life with a minimal coverage of the substance of intellectual property. Over the years, each Convention has been revised and amended on seven occasions. Each revision has deepened the international rules contained in the conventions, as well as broadened them to cover new areas and to respond to the development of technology.

Each of the Paris and Berne Conventions foresaw that the conventions would be “umbrella” or framework conventions and that the Contracting Parties should be free to make special agreements between themselves that might grant “more extensive rights”(Article 20 of the Berne Convention), provided that any such specialized agreement was not incompatible with the mother convention. This facility has been widely used and a range of “special agreements” has been concluded both under the auspices of WIPO and by Member States acting outside WIPO. There are now some 26 multilateral treaties administered by WIPO dealing with a considerable diversity of subject matters, such as the establishment of the Global IP Systems referred to above, procedural harmonization, procedural supports for patenting, classification systems, protection for performers, sound recordings and broadcasting, and facilitating access to published works for blind and print disabled persons.

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 12 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry

Outside of WIPO, States have also concluded a wide range of treaties and agreements in the field of intellectual property. Technically, any agreement between two or more Contracting Parties to the Paris or Berne Conventions that deals with the subject matter of those conventions is a special agreement under those conventions, meaning that the agreement may go beyond, but must not be contrary to, the mother conventions. The “outside” agreements cover bilateral and plurilateral trade agreements and regional arrangements between member States. The preamble to the Convention on the Grant of European Patents (European Patent Convention), for example, states that the Convention “constitutes a special agreement within the meaning of Article 19 of the Convention for the Protection of Industrial Property, signed in Paris on 20 March 1883”. The Paris and Berne Conventions thus laid the foundations for a coherent international IP system.

3. Universality in Membership

From the original 10 States that constituted the founding Contracting States to the Paris Convention and who, thus, constituted the first multilateral community of States in IP, the membership of WIPO has grown to 192. The big change in numbers occurred from the 1970s and 1980s. The growth in membership from that time can be explained by several factors. WIPO became a specialized agency of the United Nations in 1974. This increased the visibility of the Organization in the multilateral community. Additionally, the aforementioned relentless progression of technology into the economy, society and the production, distribution and consumption of cultural expressions awakened a growing interest from a much broader range of countries in the policy agenda for science, technology and innovation.

Membership in WIPO is acquired by acceding to the Convention Establishing the World Intellectual Property Organization. This is an administrative convention conferring membership and the right to participate in the affairs of the

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Innovation, Creativity and Intellectual Property Francis Gurry

Organization, but it does not impose substantive obligations in the field of intellectual property. Those substantive obligations come from the Paris and Berne Conventions and their offspring. These offspring have also greatly expanded in membership, particularly in recent years. The last two years, 2017 and 2018, have each seen record numbers of accessions to WIPO-administered treaties.

A consequence of the more universal membership in the Organization has been the establishment of a large program of development cooperation and capacity building to address the needs of the new composition of the membership. WIPO spends 18% of its revenue on development.

4. Geopolitical Shift – New Players

Since the Industrial Revolution, the production and use of technology has been dominated by the so-called developed or industrialized countries, led by Europe, which was joined by the United States of America in the latter part of the 19th Century. Competition in technology was for a long period largely bipolar. Of course, this is a simplified picture. There were other players, even if their role was more peripheral. The Soviet Union, for example, enjoyed considerable industrial capacity and its technology in space and in the military was at the leading edge in the period following the Second World War. Nevertheless, commercial technology remained dominated by Europe and the USA.

This situation has now changed radically. Japan’s emergence as a leading technology power in the 1980s led the change, but it was quickly followed, in chronological order, by the Republic of Korea and China. All indicators point in the same direction. Capacity and competition in technology and innovation are now multipolar, with Europe, the USA and Asia constituting the major poles and Asia becoming increasingly strong. In the field of intellectual property, Asia was the origin of two-thirds of all IP applications filed worldwide in 2017 and China

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 14 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry was the major source in each area of patents, trademarks and designs. A debate rages about quality, but it would be a grave misreading of history to consider the evidence as only numbers and a game for leadership in numbers. It is highly doubtful that the current tension between the USA and China over technology and IP would be as strong, or would even exist, if this were only about posturing over numbers. On the contrary, everything tells us that the world has changed, not just numbers of IP applications, which are one indicator, but also the amount of investment in research and development (R&D), where China is the second largest investor in absolute terms, after the USA, and where Japan and the Republic of Korea, with due allowances for differences in scale, are also strong performers, as well as the growing strength of educational and research institutions, the number of engineering graduates, the publication of scientific papers, the number of scientists working in R&D, the availability of risk capital and the strategic focus of economic and industrial policy.

The change that has occurred in relation to technology is, and will be, increasingly reflected also in cultural works. Demographics place the largest markets in Asia and, with rising middle classes resulting from economic success, the markets for cultural products and services will be deeply influenced by Asia. This is already apparent in film production, where India is a leading player, as well as China, in the video game industry, which is larger than the world markets for each of music and of films, and in both popular and classical music. It may be expected that, as the digital transformation develops, cultural offerings and the platforms on which they will be distributed and consumed will have a major Asian component, radically altering the Western domination of cultural production and consumption.

5. Axes

Throughout much of the post WW2 period, two axes have marked ideological divides and have defined lines of differences in approach in multilateral

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 15 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry discussions in the fields of innovation, creativity and IP. These are the East-West and the North-South axes.

IP is private property. It is a policy built upon participation in the market economy through the ownership of property rights. State ownership of the means of production and the absence of private property did not sit well with such a policy. The Soviets did not like property, but they were very fond of, and very good at, technology, building on a strong tradition of excellence in science and mathematics. The way around this dilemma came in the form of the inventor’s certificate, which was practiced in the Soviet Bloc in the place of patents. The State awarded an inventor’s certificate to an inventor, who received also a usually rather menial prize or privilege in return for the invention and the disclosure of the invention. Ownership of the invention vested in the State.

The result of this system, in short, was that the use of inventions was determined by the State’s priorities, rather than by the logic of the market and consumer preferences. Hence, the excellence of Soviet technology in the fields of the military and space and the relative mediocrity of their commercial technology.

The game-changer in this divide came not with the disintegration of the Soviet Union, although that obviously had a major impact, but with China. China adopted in 1984, long before the end of the Soviet Union, a patent system and not a system based on inventor’s certificates. It was a choice made, after long and difficult internal discussions in the early days of the opening of China, in favor of a socialist market economy. The rest, as they say, is history. China now has the largest patent office (the China National Intellectual Property Administration (CNIPA)) in the world. It is the source of the largest number of patent applications in the world and it is the second largest filer of international patent applications under the PCT at WIPO. On current growth rates, it will become the largest in 2019 or 2020.

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Innovation, Creativity and Intellectual Property Francis Gurry

The North-South axis has been more enduring. At its basis has been the technological gap that has exists between the developed and the developing world, a gap that translates into a reduced capacity to compete and a reduced quality of material life. The question for multilateralism has always been how to narrow this divide.

The 1970s witnessed a major effort on the part of developing countries to promote a new international economic order that had the transfer of technology as one of its main lynchpins. Technology was regarded as a universal human heritage and the argument was advanced that the benefits of technology should be available for all. Lengthy discussions took place within the United Nations Conference on Trade and Development (UNCTAD) to develop a code on the transfer of technology. The code did not materialize, but the call for the transfer of technology lingered and has been part of multilateral discussions in many fora ever since.

The discussion is unfinished, but it has evolved. It is likely to remain a demand on the part of developing countries for as long as the technological divide persists. The speed of the development of new technologies and the radical disruption that is occurring with respect to new technologies suggest that this may be a very long time.

Such a complex subject merits a profound reflection, beyond the scope of an overview. Nevertheless, as a general approach, it may be better to think less in terms of the transfer of technology, which carries historical echoes of some rather easy handover of capacity, something that is unlikely to happen when that capacity lies at the center of comparative advantage in an intensely competitive multipolar world. It may be better to think in terms of a coherent strategy for the acquisition of foreign technology and the development of domestic technological capacity, both of which require focused and comprehensive approaches covering a vast range of subjects such as the education system, the

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 17 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry quality of research institutions, prioritizing government expenditure, investing wealth generated from primary physical resources into intellectual capital, encouraging the right sort of foreign investment, the retention and attraction of skilled human resources and so on. It would also be useful to study how those countries that have succeeded in this task have done so. China, the Republic of Korea and Singapore are salient recent examples, but there are other examples. In general, those who have graduated have not done so through any simple process of the transfer of technology, but through deeply thoughtful strategies led from the top and carefully and diligently executed throughout the whole of the government and economy.

6. The Changing Forms of International Cooperation

In the early days of multilateralism, international cooperation meant treaties. In the 1930s, one commentator described the treaty as “the only and sadly overworked instrument with which international society is equipped for the purpose of carrying out its multifarious transactions” 1. This has now changed dramatically. The treaty has not become redundant, but it has been supplemented by a range of actions that States, either amongst themselves or in cooperation with non-State actors, agree to undertake without necessarily modifying or constraining the laws or other norms of the State. This is indeed the spirit of the Sustainable Development Goals (SDGs) adopted by the United Nations General Assembly in 2015, which call for “a revitalized Global Partnership … bringing together Governments, the private sector, civil society, the United Nations system and other actors and mobilizing all available resources”. It is also an opportunity to use new technologies of communication and cooperation, such as platforms, to undertake appropriate action and to achieve desired goals.

1 See Lord McNair, The Law of Treaties (Oxford University Press, Clarendon, 1961) 5.

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Innovation, Creativity and Intellectual Property Francis Gurry

A good example of the use of multiple forms of international cooperation in the field of creativity and IP is the actions undertaken at WIPO in favor of blind and visually impaired persons. The problem that the international community sought to address was the book famine affecting blind persons, a situation in which only about 10% of published works were becoming available in accessible formats for blind persons. The member States of WIPO concluded in 2014 the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled. The treaty allowed an accessible format to be made of any published work, under certain conditions, and to be exchanged across borders for the benefit of blind persons. It was a major step forward. But the treaty only creates the possibility of making and exchanging accessible formats of published works. It does not actually move one book. For that to happen, an Accessible Books Consortium (ABC Consortium) was formed under the auspices of WIPO with the participation of authors, publishers, libraries, rights-owning organizations , the World Blind Union and other associations delivering services to blind persons. The ABC Consortium has galvanized action made possible by the Marrakesh Treaty. A catalogue of over 400,000 works in 76 languages is now available for blind persons in Contracting Parties to the Marrakesh Treaty (of which there are now 76, with that number rapidly increasing). The members of the Consortium also cooperate to promote publication in accessible formats and to deliver capacity building services such as the creation and publication of educational titles in local languages (over 4,000 such titles have been produced).

There are many examples of such forms of cooperation in the field of innovation, creativity and IP that are sponsored by WIPO. They include a public-private partnership for sharing IP and unpublished scientific data among pharmaceutical companies, universities and research institutions to advance drug discovery for neglected tropical diseases, malaria and tuberculosis; databases of technology disclosures and brand and design information; platforms for sharing the results

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Innovation, Creativity and Intellectual Property Francis Gurry of work done by national IP offices on IP applications; and artificial intelligence applications, such as automated translation and image searching.

7. The Challenge of New Technologies

The greatest challenge of all for multilateralism lies in the future, rather than in the past century. We are witnessing now a number of profound changes and developments, any one of which in itself is a fundamental challenge. Innovation has become a central element in the economic strategy of the major economies. IP is in growing demand as a principal means of protecting the competitive advantage that arises from innovation. Competition is intensifying and has become multipolar, complicating the task of ensuring that it takes place in a fair and transparent manner. The technological divide persists and risks becoming wider, rather than narrower. After two or more decades of opening, there are ominous signs of closure, with foreign direct investment falling for successive years, protectionism rising, cross-border mergers and acquisitions being subjected to more stringent reviews on the grounds of security and national interest, and trade tensions, especially around technology, intensifying.

It is in this cauldron of hot issues, many of which have antecedents, even if expressed somewhat more genteelly, in the past century, that we see also rapid and profound technological transformation with the digital revolution, astonishing advances in the life sciences, artificial intelligence, robotics and many other technological transformations that are creating a new world. The speed and profundity of change is challenging the capacity of national governments to keep pace and to respond in a timely manner. But most issues have an international dimension, so that sustainable solutions will ultimately need international, rather than merely national, action and cooperation. We can be grateful to our predecessors for the work that they did in constructing strong

From the League of Nations to the United Nations: One Hundred Years of Multilateralism in 20 Geneva (1919-2019)

Innovation, Creativity and Intellectual Property Francis Gurry institutions, for it is to them that we shall need to turn to address the multiplicity of challenges that multilateralism now faces.