Liveblog: TACD IP conference

As part of my New Years’ resolutions, I want to blog more about events that I attend. Today’s (I think — my brain isn’t working 100% yet this morning) the first event I’ve been to this year, I’ll start here. Today, I’m at the Trans Atlantic Consumer Dialogue workshop, Patents, Copyrights and Knowledge Governance: The Next Four Years, and I’ll try to offer thoughts throughout. They’ll be rough comments — my impressions only — and apologies in advance for any errors or (unintentional) omissions. This is not a transcript. Comments in brackets are not based on any particular comment made by speakers.

TACD is, as the name suggests, a forum for consumer-oriented groups from Europe and the U.S. TACD has a working group on intellectual property rights, which is hosting today’s event at the Carnegie Institution in Washington, DC. It’s a star-studded cast both of speakers and of attendees.

First speaker is Arti Rai of Duke University, offering 4 recommendations.

• Good governance policies for knowledge governance. Need more evidence, and more neutral evidence, for policy making. Need neutral frames.
• Should use U.S. policy as cautionary tale, not only as positive model for other countries. U.S. has to improve patent policy and administration of patent office to be a good model for others. Need to look at empirical data — e.g., not all patentable subjects need exclusive rights.
• Green innovation. “Greatest economic and moral challenge of our time.” Patents are one way to stimulate innovation, but not enough. Carbon emissions not priced properly — market failure — patents alone won’t work.
• Focus on ends, not means. Ends: jobs, access, sustainable economic growth. Means: innovation (Romer, Solow). But innovation not high on government’s agenda — because it’s not high on lobby group’s agendas. Innovation is disruptive — the past has lobbyists, the future doesn’t. Thought: create a high-placed position in the White House to focus on innovation.

Q&A:

• Rai: USPTO claims to be voice of innovation, but it’s really the voice of patents — may be one means to innovation, but not the only means.
• Jamie Love wants to know what policies Obama will pursue (Rai has worked with the Obama team — but not speaking for Obama). Answer: Since Richardson dropped out of consideration for Commerce head, it’s thrown things for a loop [PTO is under Commerce]. Transition team has a group on innovation, separate from agency review groups. Innovation is high on the agenda — desire to fill related positions as quickly as possible, and have a higher WH presence on innovation. Love: Has Obama taken a position on the WBU treaty on exceptions for readers with visual impairment: Rai: No.
• Can we get empirical figures on patents, copyrights?

Next, Guilherme de Aguiar Patriota of the Brazilian government. Delegate to UN.

• WIPO Development Agenda: UN body that didn’t consider questions like other UN bodies. Also not considered in producing TRIPS at WTO — result of economic power focused on Uruguay Round of negotiations — wishlist of industry (esp. pharma), not from objective assessment. “One of the most Draconian” treaties from the Uruguay Round — some people think it shouldn’t even be part of WTO. TRIPS should promote impact studies to produce empirical data, broader than just considering impact on established industries — should consider scientific and social consequences. [Thought: Less-developed countries' interests are aligned with young industries of developed countries, because they're less part of the establishment. Encouraged by specialization resulting from lower trade barriers?] Suggests different technologies should be treated differently in terms of IP rights. Enforcement is a significant government action — costs of enforcement should be considered in policymaking. Sector differentiation prohibited by treaty, but there’s a lot of pressure to do it, and it’s happening informally already. Established industries will naturally advocate for extension of their monopoly. Patent reform in U.S.: pharma, IT sectors have different interests. Suggests creating legal definition of innovation. Developing countries may not have capacity to investigate patentability, so likely to follow lead of developed countries’ patent offices uncritically — potentially leading to more patents in developing countries, where local inventors will have fewer resources to challenge them. Need better international exceptions & limitations, limit encroachment on public domain.

Q&A:

• Question about WIPO copyright committee [or patents? lost track].
• Good focus on global social benefit, rather than on one company or industry.
• Question about Brazil’s Petrobras’ patents and green innovation — do they get in the way, shouldn’t Brazil walk the walk? A: Petrobras should follow international standards.

Next: Hugh Hansen of Fordham University.

• Rational, fact-based decision-making is important. Non-interested assessments are important. Civility in the debate is important. IP academics used to be “secular priests” for IP. People in cities don’t innovate because they don’t have garages. Bias against capitalism is counterproductive. Protectionism is a prisoner’s dilemma: you have to ratchet up to protect your people relative to others (other companies, other countries). [Do you?] Little diversity in IP regimes = few laboratories to see how different policies work. Distrust: WBU treaty seen as Trojan horse.
• U.S. and E.U. should embrace protection for traditional knowledge, genetic resources, as a matter of social justice. [This is an area I want to know more about -- should check the presentations from the recent ALA conference.] Comparison to raw natural resources.

Q&A:

• Lea Shaver of Yale Law takes issue with general distrust of capitalism — thinks a lot of IP criticism is based on conservative economics (anti-monopoly).
• Is Obama administration a good opportunity to change shift to multilateralism rather than bilateral trade agreements? [Everybody wants to know about Obama.] A: You can only have a re-examination of IP policy when people trust the re-examiner. New WIPO DG is trusted party; so is Obama. Need dialogue among people who disagree. [Nice in theory, but when do we stop having "dialogue" and start mobilizing for policy change?]
• Bruce Perens: We need a fund for [free/cheap?] representation of smaller parties in IP disputes. Winning a dispute can be a Pyrrhic victory — you spend so much defending your position. Need better balance for IP, quid pro quo. Well-constructed patents are theoretical. A: IP has always been about securing rights for rightsholder, not about quid pro quo. [What about compulsory licensing for music recordings?]
• Too strong competition policy is damaging — our present antitrust law is well-balanced.

Last is Sisule Musungu of IQ Sensato. [Everybody's joking about the lack of coffee. Addicts, I tell you. But wish I had guaraná.] Title: opportunities for Obama administration and EU to do good with IP policy. More will be posted on his blog later.

• Obama: “Change has come to America”. What change is coming to patent and copyright policy? Leadership is important — we assume there’ll be good leadership from Obama on this. [Do we?] But less clear on lower positions: IP czar, USTR, etc. Also important is leadership at WIPO, other countries (e.g. Brazil, some African countries). Also needed at WHO — now seeing significant lack of leadership.
• Areas to do good: Innovation and access to medicine. Used to be: you’re either for access or for innovation. Pharma industry used to resort of insults and name-calling. Others focused on balancing. Financing is still an unresolved question. Obama should support the WHO working group on IP and their recommendations.
• Patents.
• Copyright. Had been focus on broadcasting treaty — no justification — “others have rights, therefore we have rights”. Obama should drop it — it just eats up attention that could go to more important areas (e.g. WBU treaty). Need global E&Ls (e.g. distance education).
• IP enforcement. Stop “counterfeit policymaking” — doing something major without evidence and in secret (e.g. ACTA). If there’s a legitimate interest in enforcement, why can’t we discuss it openly? Also applies to EU bilateral agreements (e.g. African, Caribbean countries — asking them to take on enforcement responsibilities even the EU doesn’t have).
• Generally, IP will be everywhere internationally, either because of forum shopping or because the issue touches on it (e.g. climate change). Should borrow WIPO’s principles: inclusiveness, focus on public domain, balancing interests of different countries and sectors. [Are these really WIPO's principles?]

Q&A:

• Is there compulsory licensing for patents (cf. copyright on sound recordings)? Is there use it or lose it for patents (cf. trademarks)? Concerned about move to protection by contract (nondisclosure). A: Compulsory licensing for patents is rarely applied.
• Michael Geist: Thanks for bringing up ACTA. Optimism about WIPO is based on a few countries like Brazil that have started to use it; but ACTA’s a closed door deal. What countries might push back on ACTA? A: We might see pushback when ACTA starts being used e.g. as a basis for technical assistance.

Final comments from panelists:

• de Aguiar Patriota: ACTA isn’t being pushed at WIPO because the developing countries would fight for their interests there — another example of forum-shopping; e.g. moved to World Customs Union, less balance of developed:developing countries, delegates aren’t negotiators but customs officials, close relationship with INTERPOL and enforcement interests — less substantive expertise. Breeds mistrust.
• Hansen: I don’t understand what the problem with ACTA is. There were always outside meetings where like-minded countries. Forum-shopping is appropriate — only applies to interested countries. [But they'll negotiate it in private first then pressure everyone else to adopt it later.] He says WIPO is an example of mistrust, so people go elsewhere [isn't it the other way around?].
• Musungu: People negotiating ACTA don’t know what they’re negotiating. ACTA won’t apply only to the countries who are negotiating it, but it would be used as a standard for other countries too. We need everybody to make their argument on the basis of evidence.

First panel’s over; will blog about the later panels in separate posts.