Washington Declaration Cements the Role of Public Interest in IP Policy

Alysia Lau is a JD candidate at Osgoode Hall Law School who took part in the inaugural offering of the Intellectual Property Law and Technology Intensive Program (IP Intensive) in the Fall of 2011. As part of the course requirements, students were asked to write a blog on a topic of their choice.

This past August, over 180 experts from 32 countries convened at the American University Washington College to discuss the growing importance of public interest in intellectual property (IP) law. When the Global Congress on Intellectual Property and the Public Interest (the “Global Congress”) drew to a close, its members released the Washington Declaration on Intellectual Property and the Public Interest (the “Declaration”), underscoring emerging public interest issues in IP and approaches to integrating them into international IP policy.

The Declaration’s recommendations are grounded in the growing concern that IP policy, though holding the potential to widely affect public interests, continues to be shaped predominantly by private ones. This is because IP policy discourse remains largely centred on the interests of rights holders, demonstrated by the European Union’s recently passed “Cliff’s law” directive that extended protection of sound recordings from 50 to 70 years. The Global Congress openly confronts this trend by exposing the ways IP rights can invasively affect public values such as freedom of expression, consumer protection, and privacy.

The Declaration emphasizes that, in moving forward, IP policy must incorporate public interest concerns by increasing transparency in the policy-shaping process, ensuring consultation with a range of stakeholders, and strengthening limitations and exceptions to IP rights. Some notable recommendations in the Declaration include:

• Supporting the use of open educational resources through government procurement policies for textbooks and other educational materials;
• Developing binding international agreements providing for mandatory minimum limitations and exceptions;
• Creating appropriate limits on the use of unfair contracts or technological protection measures that override limitations and exceptions;
• Ensuring that legal penalties, processes, and remedies are reasonable and proportional to the acts of infringement they target;
• Limiting the duties, rights, or abilities of Internet service providers to monitor or control the communications of their users;
• Ending patents based on discovery rather than invention (including patents on human DNA sequences and disease associations) and creating a more rigorous determination of inventiveness;
• Ensuring that inventions that result from publicly funded research are available for public use;
• Increasing public oversight and accountability of collective rights management organizations; and
• Requiring that current proposals for global copyright and patent reform fully integrate development concerns.

What the Declaration markedly reflects is a growing shift in view which recognizes that innovation and creativity are not merely nurtured by strong IP rights but by the cultural environment created by the public. Therefore, although IP rights are property rights in the sense that they are controlled by the rights holder, contemporary discourse must progressively consider the rights of the public at large to access and use that “property.” The Supreme Court of Canada has, for almost a decade since Théberge v. Galérie d’Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, recognized that IP law ought to establish a balance between “the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” IP law and policy – and Canadian IP policy in particular – should be at the forefront of genuinely reflecting that balance.[1]

Having conceptually established the necessity of this balance, the important question the Declaration seeks to address is: how does the concept of promoting the public interest in IP take shape in practice? It is easy to immediately launch into debate over how the implementation of the Declaration will effectively uphold user rights or encroach on the interests of rights holders.  However, perhaps the most important take-away from this discussion – as summarized by the Global Congress at the end of the Declaration – is the need to channel more resources and greater efforts into studying the impact of IP policy. The greatest weakness of the debate is not the absence of strong theoretical arguments but that of strong evidence to point the debate in one direction over the other. Although most IP-focused research is conducted and funded by industry, these studies often fail to adequately document and publish details on their assumptions, methods, and data.[2]  In addition, almost no research has examined the economic value generated by limitations on or exceptions to IP protection.[3]

As was vocally conveyed by the Global Congress, beyond conceptual debates shaping IP policy, it is time for policy-makers to begin moving towards a form of evidence-based policy development.