Chapter 1: IP policy framework and governance
Overview
This chapter looks at the major priorities and challenges for innovation and intellectual property, and the various public policy tools that governments use in which IP plays an enabling role. It then delves into governance considerations and examines various ministerial responsibility models. This includes how countries organize the policy oversight and responsibilities of relevant ministries and consequently the structure of their IP administration functions. This chapter also explores policy development and coordination, and public consultation mechanisms in place in various jurisdictions and the role of IP offices in these processes. The ways in which IP offices engage with stakeholders in their own governance and the key benefits this engagement provides are also explored in more detail.
Key insights
Growing importance of IP in government policies
The opportunities for countries to improve their innovative capacity are driven by big societal challenges, rapid technological progress and an increasingly global economy.
Governments recognize the need to address IP considerations in a range of broader policies, including innovation, creativity, and sustainable economic development. Concurrently, there is a strong push to equip the players in the innovative and creative ecosystems with the tools and knowledge they need to better leverage IP for economic and social benefit.
Governments therefore use a variety of program and policy tools not only to facilitate domestic innovation but also to foster global commercialization. National IP strategies that shape and support national innovation systems, and that consider the international IP marketplace, are an important public policy tool.
An important consideration for heads of IP offices engaging in policy discussions is to help catalyze a balanced IP legal framework that responds to the needs of a dynamic marketplace while reflecting the public interest and ethical considerations.
IP offices are key partners in their government’s policymaking processes
IP offices are being solicited for the strategic value they can bring. They provide policymakers with valuable data and insights about innovation trends, emerging technologies and IP-intensive sectors in their national economy that can influence the direction of government strategies and policies. IP offices are centers of competence for intellectual property at the national level.
Broader national policies touch on the IP dimension, requiring government-wide coordination mechanisms involving several ministries. Active involvement by the IP office can help ensure that IP issues are addressed in such policies – for example, research and development, innovation and trade, among others.
Prevailing governance models and emerging trends
This section examines how countries organize the policy oversight and responsibilities of the various ministries, and the structure of their IP administration entities.
Governance options range from the more traditional model, where IP is seen primarily as a legal and regulatory function, to a more modern approach, which recognizes IP as an enabling tool for broader innovation, creativity and economic development goals.
There is no single model for the integration of national IP offices into the national ministerial structure. The prevailing models observed place the IP office within a lead ministry with an innovation or economic portfolio, or with justice and legal affairs. The responsibility for copyright and related rights is often with the ministry of culture or arts. However, in some jurisdictions there is a single IP office responsible for the administration of both industrial property and copyright matters.
Some countries are creating IP agencies which combine all IP-related functions of various ministries under one roof. The intent is to create a single focus within the government hierarchy, which should lead to more coordinated and effective IP policies and services.
While IP governance and administration frameworks worldwide serve similar purposes, their design may require special consideration in developing countries. Lower IP filing volumes and a generally more resource-constrained environment may warrant different institutional approaches that prioritize the IP functions most relevant to the local context. They may also give rise to regional cooperation models, as illustrated in the case of the African Intellectual Property Organization (OAPI).
Inter-ministerial coordination and public engagement mechanisms
Due to the crosscutting nature of IP and the range of ministries involved, most countries observed in this study have established formal or informal inter-ministerial coordination mechanisms, which not only deal with IP-specific matters but also broader interrelated policy areas.
Similarly, governments also seek input and feedback from stakeholders on proposed policy initiatives and engage in international cooperation to address global IP challenges.
IP offices often play a central role in these coordination and consultation mechanisms, acting as central hubs for engaging with domestic and international stakeholders, conducting research and formulating policy recommendations.
Many IP offices also involve stakeholders in their own governance through various mechanisms. Heads of IP offices interviewed cited a range of benefits, including bringing in specialized knowledge to help shape policies and practices.
Chapter 2: IP office administration
Overview
In examining various models of IP office organization and administration, the study probes interviewees on the role and appointment of the head of the IP office, the institutional and legal status of the office, its mandate and scope of responsibilities, the degree of administrative autonomy, and service improvement strategies.
Key insights
Head of the IP office is a multi-faceted role, bridging policy and administration
Heads of IP offices interviewed say that their role involves balancing legal, administrative, strategic and diplomatic aspects while contributing to national public policy objectives and priorities of the government. In many countries, the head of the IP office is the most senior public official responsible for the administration of IP rights. As such, it is usually a senior position, reporting to the senior official or head of a ministry, in some cases to a minister, or even directly to the head of the government.
The appointment process varies depending on the legal, administrative and political systems of each country. Nevertheless, the importance of the position in the government apparatus and the decision on who heads the IP office can be a signal of the importance that the government places on IP issues.
Mandate and range of IP office functions
The mandate of many national IP offices is to encourage innovation, creativity and economic development by providing a framework for the protection and management of IP rights within a specific jurisdiction. While the core functions remain consistent, two general types of mandates are observed: one has a broader economic and societal ambition; the other focuses on the optimal operation of IP services.
While all offices emphasize service quality and efficiency, offices with a broader mandate undertake other activities, including policy development, technical assistance and capacity-building, and economic research. Generally, most IP offices go beyond their regulatory function and are actively engaged in improving knowledge of IP and building an IP culture, as well as providing specific programs for small and medium-sized enterprises (SMEs), the research and science community, and others.
Administrative autonomy models
This section examines the degree of independence that the IP office has in managing its day-to-day operations and resources. The key parameters include the degree of administrative autonomy, the office’s legal status, the source of its operating budget and the degree of control over revenues and expenditures (including fee-setting), as well as its capacity and flexibility in hiring staff.
The level of administrative autonomy that an IP office has varies by country, although this is difficult to judge in absolute terms. Some of the IP offices in the study sample have the status of a national government agency. In most cases, such agencies are linked or subordinated to a ministry, and may be known as, for example, a special operating agency, decentralized public agency or parastatal agency.
A key parameter relates to financial autonomy. At one end of the spectrum, some IP offices can be described as self-sustaining agencies. They finance their operations entirely from the fees they collect and receive no additional budget from the government. Although this brings some benefits, including the capacity for longer-term investments, there are also risks should there be a downturn in the economy or lower revenues.
Some IP offices operate on a “cost recovery” model, which allows them to cover operational costs, while providing a certain level of revenue to the central government. In some countries, IP offices receive annual budget allocations from the ministry or government, while revenues from fees collected are returned to the central government.
The study also looks at the determination and management of IP fees. In principle, the ability to set fee levels provides additional flexibility to cover increases in costs; but this is usually subject to political realities and stakeholder dynamics. Furthermore, fee-setting involves delicate trade-offs to ensure the IP system functions effectively and does not encourage speculative or low-quality IP applications.
While many offices have a certain autonomy in the recruitment of staff, most face constraints related to staffing levels and allocated budgets. A common priority among heads of IP offices relates to training, skills development and capacity-building. All offices face challenges in recruiting the expertise required, including scientific, legal, technology and industry specialists.
Service improvement strategies
IP offices operate in a national and global marketplace where speed and ease of service has become commonplace, and client-centered service models have become the norm. Increasingly, global businesses are using multiple forms of IP in a range of countries, requiring IP offices to harmonize practices, procedures and technological platforms with other jurisdictions.
A common preoccupation of heads of IP offices is improving the quality, effectiveness and efficiency of their services. Administrative efficiency is paramount as it serves innovators, creators and businesses operating in a fast-paced global marketplace. Depending on their capacities, IP offices strive to be at the forefront in harnessing the latest advances in digital technologies and artificial intelligence (AI). Globally, international collaboration by IP offices is essential for harmonization of processes and more efficient processing of IP rights, and for dealing with challenges that transcend borders and demand common action.
Now more than ever, a country’s innovation capacity and creative potential rest on the ability to leverage intellectual property effectively. With the dynamic technological advances in new and emerging technological fields combined with important global and societal challenges relating to sustainability, governments should look to equip their IP offices with the capacity and tools to keep pace with the evolving landscape.