Francis Gurry on the challenges for multilateralism in the field of intellectual property

As WIPO’s 189 member states prepare to gather in Geneva for their annual meeting of Assemblies, Director General Francis Gurry sat down with WIPO Magazine to share his views on the challenges for multilateralism in the field of intellectual property.

Why is multilateralism important in the field of intellectual property?

Multilateralism is the greatest source of legitimacy and inclusiveness for making rules. Through multilateral negotiation the international community aspires to provide a system which is fair to all participating countries, including smaller states.

In the field of intellectual property (IP), multilateralism is especially important because of the mobility and global application of innovation, ideas and creative works, especially in the digital age. If IP is to fulfill its mission to provide a proper economic incentive through protection for creators and inventors, then similar rules will need to apply across the globe where possible.

What are the key challenges for multilateralism in this area?

The biggest challenge is the growing contrast between the extremely rapid speed of technological change and of the business responses to that change, on the one hand, and the relatively slow speed of conventional intergovernmental processes for the development of international cooperation, on the other hand. Such processes are inclusive and require that all states are comfortable with the change that occurs, which can take time. This poses a real and enduring challenge for multilateralism in dealing with IP, which by definition is concerned with the new – innovation and new creative works.

These contrasting speeds explain in large part why over the last 20 years we have seen more international – but non-multilateral – cooperation at the bilateral, plurilateral and regional levels. It is easier to make rules and get agreement among a smaller number of states than it is to do so with the whole world. This shift in the international landscape is a major challenge for multilateralism.  

What are the implications of these challenges for IP and how is WIPO responding to them?

In this new and more complex landscape, everyone in the international community needs to think very carefully about the role of multilateralism and the value it can add. And in the area of IP we need to carefully consider what needs to be done and what can be achieved multilaterally. We need to evaluate what requires multilateral action as opposed to national, bilateral or plurilateral action. We also need to ask ourselves what is the best value that a multilateral institution can add.

Such evaluations involve extensive dialogue between WIPO’s member states and relevant interests in the productive and cultural sectors – industry, creators, innovators and cultural institutions such as libraries. This should make it possible, in principle, for member states to agree on areas where some form of multilateral action is needed – and what can be done.

As a means of international cooperation, does treaty-making have a future?

Not every form of international cooperation needs to be implemented through a treaty. In The Law of Treaties back in 1961, Lord McNair said that “a treaty has been described, with some degree of exaggeration, as the only and sadly overworked instrument with which international society is equipped for the purpose of carrying out its multifarious transactions.” That is how the world was 60 years ago. Now we are seeing a broader range of instruments of international cooperation. Many practical advances can be achieved without a treaty.

Not every form of international cooperation needs to be implemented through a treaty.

Individual states often choose to cooperate in small numbers and for a variety of reasons – historical ties, geographical proximity, shared economic interests. Any two states can agree to cooperate in a certain way. They may wish to cement that in an agreement but it is not essential that they do so. In the same way, the international community can decide to do something through a resolution or decision of one of WIPO’s constituent bodies (e.g. the WIPO General Assembly). While such arrangements are generally not binding in the strict legal sense unless adopted in the form of a treaty to which a state accedes formally, they can advance internationally agreed goals. Indeed, the same process that is needed to identify areas where the multilateral can add value is also required when it comes to selecting the instrument used to define the nature of the international cooperation that will take place.

Examples of international cooperation at WIPO (see box) where member states decided to cooperate to achieve a given goal include WIPO’s global databases, which are an extremely rich source of business intelligence. WIPO also offers practical services like the WIPO Centralized Access to Search and Examination (WIPO CASE) and the WIPO Digital Access Service (WIPO DAS), which seek to improve the quality and efficiency of patent examination work. WIPO also has a number of public-private partnerships, the most prominent of which are WIPO Re:Search and the Accessible Books Consortium. These initiatives all function extremely well, yet their establishment did not require a treaty.

In some cases a treaty works in cooperation with a service. For example, the Accessible Books Consortium makes operational the legal framework established by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.  

Many forms of practical cooperation can take place multilaterally to implement or pursue the objectives of a treaty. While the treaty as an instrument is not irrelevant, it is the hardest form of international cooperation to achieve, and not every form of international cooperation needs to take place through a treaty. 

Are there costs or risks associated with not being able to achieve multilateral agreements?

The cost is the loss of inclusiveness, which is obviously very significant for small and medium-sized states. The risk is incoherent and inconsistent rule-making, which, like all risks, needs to be mitigated. The Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886), the pillars of the international system, both foresee that specialized agreements among smaller numbers of states can take place, but stipulate that such agreements must be compatible with the respective conventions. From the outset, the international IP system was framed to accommodate diversity and to encourage coherence in rulemaking at different levels.

Many forms of practical cooperation can take place multilaterally to implement or pursue the objectives of a treaty.

Another risk is that if policymaking is too slow, then the market will, by default, make policy. This is evident in the development of new business models for the creation, distribution and consumption of creative works. While this is not necessarily a bad thing, the role of policy is not only to support the market but to ensure that it operates fairly. The market alone should not determine policy. It can lead, in either direction, but there needs to be some form of market supervision.

Opportunity can be the flip side of challenge. What opportunities do you see going forward, and how do you expect the IP system to change?

There are many opportunities, but the question is whether there is a willingness on the part of member states to seize those opportunities multilaterally. The politics of intellectual property have become much more complex and tense as the knowledge economy has unfolded and innovation and intangibles have become more valuable.

While it is not easy, there are opportunities. For example, there is a general consensus – after all, 189 countries now subscribe to the objectives of WIPO – that IP is a valuable policy instrument. The disagreements relate to the questions that arise in determining the boundaries of IP and the balances in the system. There are, of course, areas in which the possibility of achieving new international agreements is extremely limited – in the area of TRIPS flexibilities, for example, where no foreseeable change is in view – but we know that there is a general consensus about IP. We also know there are certain things that are non-controversial. These include recognition that the system is inherently sound and that it should operate in the most cost-effective manner for creators and inventors. That is a huge area of opportunity that I think we do not exploit as much as possible.

We are seeing a huge amount of change in the IP system. One obvious example is the shift in the geography of innovation. Three Asian countries are now among the top five patent filing countries in WIPO’s PCT System. Japan and China are in second and third position after the United States, and the Republic of Korea is in fifth position after Germany. This is a huge change that we have seen unfold over the last 20 years. A similar shift has occurred in the areas of scientific and creative production. That is an area of great change that will continue.

A second area of change is that, as we recognize the growing importance and centrality of IP in the knowledge economy, it is likely that the system will become more sophisticated and complex. Just as the concept of physical property has evolved considerably, becoming vastly more complex, so too I think we might expect the IP system to become more sophisticated as the knowledge economy unfolds. While as a general rule we have one IP system that applies to all forms of technology, there may be a need for some differentiation in the future. As economies become more dependent upon knowledge and as people’s understanding of the role of knowledge evolves, so the system of property rights relating to knowledge will become more differentiated and complex.

Third, I think we will see a growing acceptance of the IP system as it becomes increasingly multipolar and as people everywhere become increasingly aware of the important role that technology and innovation play in the economy and society and the significant opportunities created for the enjoyment of cultural and creative works. With that will come, over time, greater acceptance of the need for sound policy mechanisms that ensure the viability of innovation and creative works.

What message do you have for member states?

In the course of its long existence, WIPO has developed a considerable acquis. The hard work and engagement of member states has resulted in a significant amount of international cooperation in the form of treaties and other systems and services. In recent years we have been able to make some good progress, with three new international agreements and many other successful forms of international cooperation. But WIPO will not be able to capitalize on these achievements or to continue to thrive without the engagement of member states and a preparedness to reach an international position. This will inevitably involve compromise. The stakes are high for multilateralism, but so too are its rewards.