IP Education – what next? A view from the Southern Cone

Maximiliano Marzetti (Photo: WIPO/
Martha Chikowore)

Maximiliano Marzetti, Professor of Intellectual Property (IP) Law & Economics at the Latin American School of Social Sciences1, a Pan-American research organization in Buenos Aires, discusses the need to rethink IP education curricula. Traditionally, IP education has placed overriding emphasis on IP law. Professor Marzetti underlines the need to adopt an economics-based approach to IP legal education programs and, in parallel, to introduce specific IP business management components to these programs. This, he contends, will enable companies to fully leverage their IP assets for long-term economic growth and development.

Thinking out of the box

In much of the world, IP education has focused almost exclusively on IP law. Graduate programs in IP are predominantly Master of Laws (LLM) courses targeting lawyers, reflecting the word of the day: “protection”. Placing primary emphasis on IP protection, however, has sparked much debate around the world, fuelling diverging North-South perspectives2. A more holistic emphasis that encompasses the business aspects of IP underlining the opportunities it offers in terms of new jobs, wealth creation and economic growth, promises a more constructive and fruitful way forward. After all, IP rights are tools to enable the entrepreneurship of ideas.

There is nothing inherently wrong with designing a purely IP-focused curriculum centered on the protection of valuable intangible assets which, because of their economic nature (as non-rival and non-excludable goods), require a legal shield against free-riding to ensure there are incentives to create and innovate. We need the protection that IP rights afford in order for businesses to thrive. But IP is about more than simply acquiring legal monopolies; it is also about harnessing innovation and creativity to create wealth. Successful, IP-based companies make profits, create jobs, pay taxes and fuel regional economic development. If we are to exploit the commercial potential of IP and to nurture a growing number of successful IP-based companies, we need economics-literate lawyers and IP-conscious managers.

In today’s knowledge economy, no business can afford to go without an effective IP strategy. All too often, companies in Latin America and beyond are unaware of how best to take advantage of their IP, and fail to leverage their full market potential. How, then, can this be turned around? IP education is crucial. Just as lawyers need to be exposed to business concepts, entrepreneurs need to understand the benefits of IP. The time is ripe to move away from primarily emphasizing IP law and instead to incorporate a law and economics dimension into IP education, focusing on the business side of IP, particularly IP management, finance and monetization.

Teaching lawyers in Latin America

Argentina offers would-be IP lawyers a myriad of undergraduate and graduate IP programs in a large number of private and public universities throughout the country. Buenos Aires, the nation’s capital, boasts a number of high-quality educational institutions with excellent faculty members and has a long and prestigious tradition in IP legal education. The pioneering academic, Professor Pascual Di Guglielmo, taught the first program on industrial property rights (including copyright at a later stage) at the School of Law and Social Sciences of the University of Buenos Aires, from 1949 to 1955.

Today, a wide range of first-rate IP programs and legal research activities are available to legal scholars in Buenos Aires. These include:

• two LLM programs in IP – one at the Latin American School of Social Sciences (Facultad Latinoamericana de Ciencias Sociales (FLACSO)3 and the other at Austral University,4 – which attract students from across Latin America;
• a number of intensive graduate programs offered by the University of Buenos Aires – one on copyright and related rights directed by Delia Lipszyc, and one on industrial property rights directed by Carlos Correa, both scholars of international renown; and
• specialized IP research centers at FLACSO (Program on Law and Public Goods), the University of Buenos Aires (Interdisciplinary Center in Industrial and Economic Law)5 and Austral University (Intellectual Property Center).

The challenges of teaching IP in Latin America

In spite of its long tradition in IP education and highly talented faculty members, teaching IP in Argentina is no easy task. Without an independent or alternative source of income, it is all but impossible. It is rare to find a full-time professor of IP in Argentina (or, for that matter, in Latin America). Most professors of IP also work as lawyers and, in many cases, they subsidize public education with their own law practice. The positive side is that this gives teaching a strong practical orientation. The downside, however, is that professors lack the time for research and other scholarly work.

While it is desirable to have a combination of legal practitioners and full-time legal scholars in any law faculty, the current shortage of full-time professors of IP law in Latin America is a matter of growing concern. Without full-time scholars, it is not possible to develop fresh theories and undertake research tailored to the needs of the region. Without adequate investment in IP education, the region’s IP laws and legal scholarship will continue to be transplanted from theory-producing countries, with Latin American countries being mere recipients of others’ systems.

Rethinking content & methodology

IP legal education in Latin America typically takes place in isolation from the social sciences, perpetuating the 19th century claim of the scientific autonomy of legal science (scientia iuris, science juridique, rechtswissenschaft). Irrespective of whether the field of law is considered a science or an art, there is no doubt that it is impossible to fully grasp the significance of IP without an understanding of economics.

Judge Oliver Wendell Holmes, Jr. wrote more than a century ago that: “for the rational study of the law, the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”6 This still holds true today. The dominant paradigm within legal academia in the United States, Europe and many parts of Asia is law and economics. In Latin America, however, there is still a great deal to be done to integrate economics with law in the teaching of IP.

Whether for lawmakers designing optimal public policies or for company managers seeking to maximize returns on IP portfolios, economic analysis is a valuable tool for rationalizing decision-making processes. It is particularly relevant in a field like IP where it is necessary to evaluate well in advance the costs, benefits, trade-offs and possible alternative courses of action. Intangible assets are valuable business resources and they require careful management.

The interface between IP law and economics is fertile ground for further study. Many useful insights have already enriched purely traditional legal debates. An economic perspective offers another way of understanding a complex reality. When coupled with sound legal reasoning, it provides a powerful tool with which to develop effective corporate IP strategies and public IP policies.

WIPO’s decision to appoint a Chief Economist and to establish an Economics and Statistics Division is a timely step in integrating economic thought into contemporary global IP debates. A similar objective is behind the recent decision by the Max Planck Institute for Intellectual Property and Competition Law, a world-class research hub in Munich, to create a Campus for Legal and Economic Research. Corporate giants need economic advice too. Google appointed Hal Varian7 (Emeritus Professor at the University of California, Berkeley and author of the bestselling textbooks Intermediate Microeconomics and Microeconomic Analysis) as Chief Economist to advise the company on the economic aspects of its activities, including its IP strategy. Indeed, many fields now recognize the need to consider the interface between IP and economics.

Teaching the business community?

Across the globe, graduate education in IP has centered on teaching lawyers. When IP was a little known, arcane branch of law, this was understandable. Today, however, IP protection is a prerequisite for creating the incentives necessary for business growth. The time is, therefore, ripe to ensure that IP education delivers the kind of knowledge and training that companies need in order to manage IP assets strategically and effectively. This calls for greater emphasis on developing graduate programs that focus not just on IP acquisition but also on IP management and commercialization. And why not dream of a multidisciplinary, global MBA in IP to take IP education to a whole new level in the future?

IP education goes beyond the protection of valuable intangible assets. Protection for the sake of protection makes no business sense. We protect IP in order to exploit and profit from our creative efforts. Latin American companies, multilatinas, with a global reach as well as small and medium-sized enterprises have an urgent need for specialized IP management know-how. Within Latin America there is a golden opportunity to educate business executives, engineers and technology specialists in how best to manage IP portfolios for optimal economic return. Universities, public research institutions, professors and scientists also need to learn how to value and successfully manage and transfer their IP assets. This promises benefits both for the custodians of this knowledge as well as the economic well-being of the region as a whole.

Sparking innovation

IP education is crucial to the effective exploitation of IP and its strategic use. From the perspective of a Latin American professor of IP and lawyer, it is clear that, on the one hand, we need to develop more advanced programs to train lawyers to be economically-minded and, on the other hand, to provide the drivers of innovation and economic growth – entrepreneurs, business executives, engineers and scientists – with specific skills in effective IP management.

WIPO has a key role to play in advancing IP education globally, including in Latin America. A program sponsored by the WIPO Academy in cooperation with regional IP specialists and institutions on IP and business management would be a welcome step in promoting more effective use and management of IP assets in Latin America.

IP is at the heart of the knowledge economy and, with relevant business-oriented IP education programs that target lawyers in private practice, government as well as the business community, there is great scope for sustained, long-term economic growth and development, in both Latin America and beyond. For anyone who doubts the importance of education as a catalyst for growth, it is worth recalling the words of Anglo-Irish poet William Butler Yeats, “Education is not the filling of a pail, but the lighting of a fire.” Integrating a stronger focus on the economic and business aspects of IP management could do much to spark innovation and fuel economic growth.

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1  Facultad Latinoamericana de Ciencias Sociales (FLACSO)
2  Ghafele, R., Perceptions of Intellectual Property: a review. 2008, IP Institute: London
3  http://flacso.org.ar/formacion_posgrados_contenidos.php?ID=74
4  http://web.austral.edu.ar/derecho-mpi-caracteristicas.asp
5  http://www.derecho.uba.ar/investigacion/inv_inst_ceidie.php
6  Oliver Wendell Holmes, J., The Path of Law. Harvard Law Review, 1897. 10 (457)
7  See “IP’s online market – the economic forces at play”, WIPO Magazine 6/2010