Data wars and the dangers of deglobalization
By Francis Gurry, former head of the World Intellectual Property Organization (2008 to 2020)
Can the IP Rights system keep up with the pace of technological change?
That’s the $64,000 question. The IP system has never been so popular. If you look at the demand for patents since the 1980s, the curve that was a flat line for 100 years starts to rise. That’s Asia playing a big part and China in particular. You have 3.3m patent applications filed around the world each year, and 12.4m trademark applications. That’s an indicator that the old system still has a role.
That said, I suspect we need a new layer on it. The big question now is around data. Whose data is it? Do you have a right to your medical data, for example – do you own it?
Data is a whole area that will require a good deal of thought. On the one hand, you have governments adopting data localization laws for operators; on the other hand, there’s the so-called free flow of data [where there are no legal barriers restricting the flow of data across borders]. Then individual companies and enterprises are competing on the basis of privacy and data. Apple has tried to make this a competitive advantage. It was once a human right, an absolute right, now it’s becoming a competitive issue.
How do you start to sort it out with so many disparate and vested interests?
Yes, and where do you sort it out? The multilateral discussion machinery has broken down to some extent. Take Cambridge Analytica and Facebook. They did something that was not illegal, but was very much frowned upon. It caused outrage. People lost jobs, a company closed and it had massive consequences for something that was not necessarily illegal. But it somehow offended our sense of what is fair practice. And that’s one of the problems with having so much new technology –the legislator, the regulator, is always behind.
What role does “open innovation” play in protecting IP rights?
For a long time, corporations formed their own R&D labs. Starting in the 80s and 90s, the idea came along that, “It’s unlikely our lab has all the brains in the world. There must be other people who can help us.” So open innovation took off.
Following that, we’ve had some very fruitful international collaboration amongst universities and scientists and researchers, who tend to be more apolitical and more interested in the science. I think risking that is a very bad thing for innovation and therefore for the social benefits that innovation can bring to the world.
So, what’s your message to politicians?
Don’t throw the baby out with the bathwater – be careful what you’re doing! If we’re going to close down this system of cross-border collaboration, if we’re going to deglobalize, have splinternets and see a balkanization of the world, then that’s a complete failure. We seem to be in the midst of a deglobalization wave. It’s caused by various factors: Covid, supply chain disruption, deliberate policy measures cutting things off. It’s a very bad thing if we lose that capacity to benefit from a multiplicity of societies around the world.
Are innovators responsible for sharing their knowledge?
Yes, especially in health technologies and pharmaceuticals. We also see some political pressure in the climate change area, although personally I think that’s a bit misplaced because most clean technologies are complex—a wind turbine might have 500 patents, so it’s not like one molecule that you can seize or exercise exclusive rights over.
Why do we have innovation? Ideally, we have it for the social benefits it produces. So, how do we give the IP creator or owner the right to exercise intellectual property rights without interference from the regulator? There’s no single answer. There might be one answer for Covid and another for Monkeypox because there are different levels of threat. We have to find the right balance between the interests of innovators on one hand, and the general public on the other.
How would you encourage the sharing of socially beneficial knowledge?
We have to ask, “Is social benefit sufficiently at the heart of the IPR system? Should the granting of a patent be tested against the social value, rather than business value, of the product?” This is slowly starting to change.
Historically, IP has been “isolationist” – answerable only to its own policy imperatives. That began to change in the 1990s with the TRIPS Agreement. TRIPS allowed countries to make exceptions to patentability requirements in certain areas, such as agriculture, health and environment. IP entered a phase of engagement, which was something new.
That’s a constant now. But one difficulty is that people come at it from their own perspective – for example, if you’re a health policy person, you’re concerned about access, not innovation. So, getting that all together is a difficult trick.
[Editor’s Note: TRIPS, or Trade-Related Aspects of Intellectual Property Rights, was the first agreement to treat intellectual property rights as a global trade issue. There was a greater recognition in TRIPS of the need to spread the social benefits of innovation as widely as possible, especially in critical areas such as public health.]
Returning to that question of sharing – should there be more pressure to “use it or lose it” with a patent?
The average time a patent owner keeps a patent and pays the maintenance fees is about eight years. So, I don’t see that there’s an interest for an inventor to pay maintenance fees for something he doesn’t use – the system has an automatic cleansing effect, to some extent.
That said, I do think we could take different approaches for different industrial sectors. For example, you might need 20-year protection in the pharmaceutical industry, where you have much longer periods of regulatory approval – from eight to 12 years, depending on where you are. That’s quite different from ICT, where the technology life cycle is much quicker.
What’s the responsibility of companies such as Huawei? How can we help the international system?
Huawei is a great innovator, and that’s its principal contribution. What it’s doing, the social benefits it’s giving, is innovation in this range of digital communications technologies. That is extremely important.
Then we come to the protection and policy framework – and it has an extremely important role there too: first in informing policymakers, because you’re so far ahead in technology that policymakers need to be educated, I’m afraid, myself included. That’s an important role to be played.
Second, to remain engaged in the international discussions on standards. That is a vitally important area whose significance is not fully appreciated. Standards are fundamental to the whole digital economy.
Some countries are investing in STEM and benefitting from the technological innovation that can evolve from such investment. But is there a danger that, for political or economic reasons, other countries are not investing, potentially widening the divide between the haves and have-nots?
Oh yes, that’s absolutely the case. Both the US and China invest hundreds of billions of dollars a year in R&D. That’s more than the individual GDP of 169 countries.
They’re investing in the creation of new knowledge which will give them a competitive advantage – lots of social benefit, too, but a competitive advantage. It’s more than 169 countries have to spend on security, health, education and the rest. The gap is getting bigger and the sophistication in science and technology in countries like the US and China – and others, such as Germany, France, the UK, and Japan – is huge.
But how do you start? South Korea, Singapore and China all started from a low base and now have leading positions in R&D. But that’s just three countries.
You spent 12 years as Director-General of the World Intellectual Property Organization, striving to get nations to work together for the benefit of everyone. Are you hopeful about the future of cross-border collaboration and universal innovation?
The developments of the last couple of years, where we see security and the economy being conflated, are very difficult and dangerous and I think we have to be very careful here. When you see the number of measures that have been introduced - whether it’s a review of foreign investment on security grounds or a review of student intake – it’s really very comprehensive and I think a bit excessive. I think we need to really be careful that we don’t destroy the basis of what should be the next stage of evolution of the world in terms of co-operation and instead go back to the system of technological sovereignty, technological self-sufficiency, everyone making their own - what they consider to be - strategic products, and industrial strategy comes back. This is something we have to be very careful of.
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