Texas A&M University School of Law Texas A&M Law Scholarship Faculty Scholarship 1-2009 A Tale of Two Development Agendas Peter K. Yu [email protected] Follow this and additional works at: https://scholarship.law.tamu.edu/facscholar Part of the Intellectual Property Law Commons, and the International Trade Law Commons Recommended Citation Peter K. Yu, A Tale of Two Development Agendas, 35 Ohio N.U.L. Rev. 465 (2009). Available at: https://scholarship.law.tamu.edu/facscholar/488 This Article is brought to you for free and open access by Texas A&M Law Scholarship. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Texas A&M Law Scholarship. For more information, please contact [email protected]. A Tale of Two Development Agendas PETER K. Yu* I. INTRODUCTION .......................................... 466 II. THE OLD DEVELOPMENT AGENDA .......................... 468 A. Stockholm Protocol .............................. 471 B. WIPO ......................................... 484 C. InternationalCode of Conduct ..................... 493 D. ParisConvention ................................ 505 Ill. THE NEW DEVELOPMENT AGENDA ......................... 511 A. Doha Development Agenda ........................ 512 B. WIPO Development Agenda ....................... 515 C. Development Agendas in Other InternationalFora ..... 522 1. Human Rights .............................. 522 2. Public Health ............................... 527 3. Biological Diversity .......................... 529 * Copyright © 2009 Peter K. Yu. Kern Family Chair in Intellectual Property Law & Director, Intellectual Property Law Center, Drake University Law School; Wenlan Scholar Chair Professor, Zhongnan University of Economics and Law; Visiting Professor of Law, Faculty of Law, University of Hong Kong. An earlier version of this Article was delivered as the opening lecture of the Dean's Lecture Series at Ohio Northern University Pettit College of Law on September 21, 2007. The article was also presented at the Fifth Annual Work-in-Progress Intellectual Property Colloquium at American University Washington College of Law and benefited from peer discussion at the Second EDGE Network Annual Conference in Vancouver, Canada, and the "Strategies to Implement a WIPO Development Agenda" Workshop at the University of Hong Kong Faculty of Law. The Author would like to thank Scott Gerber, Liam O'Melinn, Joshua Sarnoff, and Jeremy de Beer for their kind invitations and hospitality and Pedro Roffe for suggesting the close resemblance between the WIPO Development Agenda and the International Code of Conduct on the Transfer of Technology. He is also grateful to Colleen Chien, Jeremy de Beer, Daniel Gervais, Christopher May, and Joshua Sarnoff for their valuable comments and suggestions; Jonathan Soike for excellent research and editorial assistance, and the staff of the Ohio Northern University Law Review in particular Jake LaForet and Charlotte Sidor, for their patience in the production process. 466 OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 35 4. Food and Agriculture ......................... 534 5. Information and Communications ............... 536 6. Summ ary .................................. 539 IV. COMPARISON ....................................... 540 A. Players ........................................ 546 B. Fora .......................................... 554 C. Issues ......................................... 557 D. Political Environment ............................ 561 E. Public Awareness ................................ 565 F. Rhetoric ....................................... 568 V. CONCLUSION ...................................... 573 It was the best of times, it was the worst of times, it was the age of wisdom, it was the age offoolishness, it was the epoch of belief it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way-in short, the period was so far like the present period, that some of its noisiestauthorities insisted on its being received,for good orfor evil, in the superlative degree of comparison only. 1 - Charles Dickens I. INTRODUCTION It was the year of Our Lord two-thousand and four. The international intellectual property regime was in a deepening crisis. While developed countries were pushing for the establishment of bilateral and regional trade and investment agreements, less developed countries2 responded by pursuing development agendas at the World Trade Organization ("WTO"), the World Intellectual Property Organization ("WIPO"), and other international fora that 1. CHARLES DICKENS, A TALE OF Two CTES 5 (1859) (Richard Maxwell ed., Penguin Books 2000). 2. The Agreement on Trade-Related Aspects of Intellectual Property Rights distinguishes between developing and least developed countries. Agreement on Trade-Related Aspects of Intellectual Property Rights [hereinafter TRIPs Agreement], Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex IC, Legal Instruments-Results of the Uruguay Round, 33 LL.M. 1197 (1994) [hereinafter Marrakesh Agreement]. This Article uses "less developed countries" to denote both developing and least developed countries. When referring to the TRIPs Agreement, this Article returns to the terms "developing countries" and "least developed countries." 2009] A TALE OF TWO DEVELOPMENT AGENDAS govern public health, human rights, biological diversity, food and agriculture, and information and communications.' From the standpoint of less developed countries, the recent developments in the international intellectual property regime are both exciting and worrisome. On the one hand, they reflect a growing momentum these countries have not experienced in decades-since perhaps the establishment of the New International Economic Order in the mid-1970s.4 The developments therefore have provided an unprecedented opportunity for countries to recalibrate the balance in the international intellectual property system. On the other hand, the developments are remarkably similar to those that took place in the wake of the old-and admittedly failed-Development Agenda, which less developed countries advanced in the 1960s and 1970s.5 These similarities have raised concerns about whether the present Development Agenda will follow the path of its ill-fated predecessor. This Article brings together these two Development Agendas-or, to be more precise, two sets of development agendas-to evaluate the potential success of the present Development Agenda. Drawing on lessons from the earlier agenda, this Article provides insights into whether and how the present agenda can be made more successful and effective. For comparison purposes, the Article refers to the present agenda throughout as the "New Agenda" and uses the term the "Old Agenda" to denote the agenda advanced in the 1960s and 1970s. The word "old" is used here not to indicate the obsolescence of the earlier agenda, which remains highly relevant today. Rather, the term is used to remind readers that the present agenda, despite its broad coverage and widespread support, represents an ongoing struggle by less developed countries to develop an innovation system that responds to their needs, concerns, and local conditions. Part II traces the development of the Old Agenda. In particular, it discusses (1) the drafting of the Protocol Regarding Developing Countries6 ("Stockholm Protocol") to the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention"),7 (2) the formation of WIPO as a specialized agency of the United Nations, (3) the establishment of the draft International Code of Conduct on the Transfer of Technology ("International 3. See Peter K. Yu, Currentsand Crosscurrentsin the InternationalIntellectual Property Regime, 38 LoY. L.A. L. REv. 323, 381-92 (2004) (discussing the demands for diversification by less developed countries). 4. See discussion infra Part U.C. 5. See discussion infra Part H. 6. Protocol Regarding Developing Countries to the Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at Stockholm July 14, 1967. 7. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at ParisJuly 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221 [hereinafter Berne Convention]. OHIO NORTHERN UNIVERSITY LAW REVIEW [Vol. 35 Code of Conduct" or "Code"),8 and (4) the revision of the Paris Convention for the Protection of Industrial Property ("Paris Convention").9 Part m takes stock of the New Agenda. This Part covers not only developments in the WTO and WIPO, but also those in the other fora that govern human rights, public health, biological diversity, food and agriculture, and information and communications. Although the length of this Article does not allow me to provide more detailed discussions of these vastly diverse fora, this Part illustrates how intellectual property issues have been transformed from a narrow, technical domestic issue to one that is multi- faceted and central to the international policy agenda. This Part further suggests that the increased fragmentation of international law, the continuous blurring of boundaries between the different issue areas, and the growing complexity of the international intellectual property regime have provided less developed countries with both promises and challenges.