The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries

Date period
1 March 2006

SummaryIntellectual property rights (IPRs) have never been more economically and politically important or controversial than they are today. Patents, copyrights, trademarks, utility models, industrial designs, integrated circuits and geographical indications are frequently mentioned in discussions and debates on such diverse topics as public health, food security, education, trade, industrial policy, traditional knowledge, biodiversity, biotechnology, the Internet, the entertainment and media industries. In a knowledge-based economy, there is no doubt that a better understanding of IPRs is indispensable to informed policy making in all areas of human development.

Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive. Conflicting views also persist on the impacts of IPRs on development prospects. Some argue that in a modern economy, the minimum standards laid down in the TRIPS Agreement will bring benefits to developing countries by creating the incentive structure necessary for knowledge generation and diffusion, thus including innovation, technology transfer and private investment flows. Others counter that intellectual property, especially some of its elements, such as the patenting regime, will adversely affect the pursuit of sustainable development strategies by raising the prices of essential drugs to levels that are too high for the poor to afford; limiting the availability of educational materials for developing country school and university students; legitimising the piracy of traditional knowledge; and undermining the self-reliance of resource-poor farmers.

It is urgent, therefore, to ask the question: How can developing countries use intellectual property tools to advance their development strategy? What are the key concerns surrounding the issues of IPRs for developing countries? What are the specific difficulties developing countries face in intellectual property negotiations? Is intellectual property directly relevant to sustainable development and to the achievement of agreed international development goals? Do developing countries have the capacity, especially the least developed among them, to formulate their negotiating positions and become well-informed negotiating partners? These are essential questions that policy makers need to address in order to design intellectual property laws and policies that best meet the needs of their people, as well as to negotiate effectively in the future.

It is to address some of these questions that the UNCTAD/ICTSD Project on Intellectual Property Rights and Sustainable Development was launched in July 2001. One central objective has been to facilitate the emergence of a critical mass of well-informed stakeholders in developing countries - including decision makers, negotiators but also the private sector and civil society - who will be able to define their own sustainable human development objectives in the field of intellectual property and effectively advance them at the national and international levels.

This study on The International Copyright System: Limitations, Exceptions and Public Interest Considerations for Developing Countries is a part of the efforts of the UNCTAD/ ICTSD Project on Intellectual Property Rights and Sustainable Development to contribute to a better understanding of issues relating to the need by developing countries for bulk access to creative works at reasonable prices and translated into local languages, and how the international copyright system can be improved to help facilitate this need. Examining the limitations of Article 40 of the TRIPS Agreement and the new realities of copyright in the digital age, Professor Okediji argues for a reform of the Appendix to the Berne Convention and for a global approach to limitations and exceptions that better balances the exclusive rights conferred through copyrights with public interest considerations for developing countries.

We hope you will find this study a useful contribution to the debate on IPRs and sustainable development.