Can IP save the day?

Jeremy Phillips
Global warming, if you will excuse the pun, is one of the most heated topics of contemporary
discussion, since it transcends all political, commercial, social, and cultural divides and it is
possessed of an immediacy that makes it impossible to ignore. The Copenhagen talks of
December 2009 led to frustration, recrimination, and to an Accord which made no specific
mention of IP rights. Does that then mean that IP has no place on the agenda? The answer is
probably that, while IP does indeed have a place on the agenda, the bad press which it has
received may prevent it from contributing to the solution as fully as it might.

Decades of North–South debates and the quest for a new economic order have left an almost
indelible image among many people of IP as a badge of affluence and privilege, and as a means
of monopolizing wealth rather than of sharing it. This means that little or no attention is focused
on its incentive functions.

To a small extent, IP might be said to act as an incentive to invent, to find a new way round an old
problem, or to prevent the creation of a new one. More importantly, though, IP is an incentive to
invest. Though the precedent of the past 200 years has no binding force, the story of the world
since the inception of the Industrial Revolution has been one in which technological change has
been commensurate with investment opportunities for the private sector rather than laudable
sentiments expressed by the public sector. Contrast the 70 years of state-controlled and
politically directed innovation policy in the former USSR with the free-range and often random
growth of technology in the West and the result is startling. With the best intentions, the ability to
control markets and to direct innovation for the public benefit, the intellectual output of the USSR
was paltry in contrast and created far more environmental damage. Since a clean, sustainable,
and safe environment is now demanded, it has effectively become a market to which IP
investment can direct itself, given the opportunity.

Need we fear that clean technologies and green innovations will be captured by private sector
piracy, with the result that the world is held to ransom? Emphatically ‘no’. Both the Paris
Convention and, more recently, TRIPS, have embedded compulsory licence regimes in respect of
patents which can ensure that no such monopoly is maintained—not that the compulsory licence
regimes of individual nations have been frequently invoked during the century and a quarter in
which they have been available. In any event, most technologies are not patented at all in most
countries. Far from freeing up these technologies for use by all, the failure of technology
proprietors in developed countries to extend their patent portfolios into less developed countries
actually starves their patent systems at local level of the fee income that might be applied to
improving the effectiveness of the patent system locally and in building a technology information
base that might prove invaluable for local innovators.

It is not just patents that can help the environment, by creating incentives to invest in the
development of fresh sources of domestic and industrial energy. Trade marks and certification
marks can help too, by enabling the concerned consumer to identify organic, natural, and
environmentally friendly products, as well as fuel-efficient ones. Design rights can stimulate the
development of more ergonomically sound goods, and so on. But none of these rights will be able
to help deliver its benefits if they are seen as bad news, part of an old economic order that is as
much in need of replacement as the technology which has so polluted it.

So what can the IP community do? We must show that IP rights are not a necessary evil but a
positive means of protecting investment and, through licensing, allowing the spread of its
benefits. We must show ourselves amenable to pooled research and shared results, to cut
unproductive duplication of effort and to split the responsibility for key R&D across a wider
spectrum of players, whatever objections the competition and antitrust lobbyists may raise, and
we must deliver the goods. If we can show that this unprecedented threat to our planet is a
challenge to which we can rise, we will have offered more justification for the system than a
thousand articles by learned apologists.
http://jiplp.oxfordjournals.org/cgi/content/full/5/2/67
Journal of Intellectual Property Law & Practice 2010 5(2):67; doi:10.1093/jiplp/jpp239

© The Author (2010). Published by Oxford University Press. All rights reserved.