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February 22, 2006

IPI's "2nd" intervention at WIPO on public domain and "brain drain"

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The following is the text of IPI's "2nd" intervention before the WIPO PCDA. It is in response to a proposal from the African Group.

Thank you, Mr. Chairman, for this opportunity to speak on behalf of the Institute for Policy Innovation.

It has long been observed that strong economic growth is the single most important factor in improving the lives of people, which includes improving education, human health, and human economic opportunity. So the factors that contribute to economic growth are the factors that contribute to human improvement.

Throughout the IIM process, IPI urged WIPO to remain focused and active in its areas of core competency, and to resist calls to become active in areas outside of intellectual property protection, promotion, and education. We remain concerned that WIPO is being urged to become involved in areas that are legitimate problems, but which are outside of WIPO's expertise.

For instance, the issue of brain drain which is mentioned in the African Proposal is a serious problem for many countries. But we think that, by promoting a strong and consistent IP regime, WIPO is already doing what it can to encourage innovators and creators to pursue their dreams in their country of origin. Without a property right in his creation, a creator cannot fully leverage his creation into economic opportunity.

If people believe that there are structures in place in their native country that will allow them to fully realize their aspirations, many of them will no doubt choose to remain there. Such structures as rule of law, an independent judiciary, property rights, basic infrastructure, and availability of education are those structures which assure people that they have adequate opportunity in their country of origin. WIPO cannot do anything about any of these factors.

We are also concerned that WIPO is being urged to involve itself in the protection of the public domain. Frankly, the public domain is not under threat. Rather, it is intellectual property that is under threat. We have heard assertions here that patents should be weakened, that intellectual property is an "invasion" of the public domain, that intellectual property "encloses" knowledge and "walls off" knowledge from people. From this rhetoric, one gets the idea that any number of villains have designs on the public domain. But this kind of rhetoric suggests to me that it is intellectual property that is vulnerable, not the public domain.

In fact, no one disputes the value of the public domain. No one disputes that much innovation is incremental, and builds on the strength of what has gone before. No one disputes that the public benefits from knowledge that is widely available. And no one is trying to reduce the public domain, or to enclose materials currently within the public domain.

IP contributes TO the public domain, and is not an opponent of the public domain. IP incentivizes invention and creativity, enhances distribution, and all IP goods eventually make their way into the public domain. Patented inventions must be disclosed to the public, so the knowledge behind a patent becomes immediately available to the public.

In fact, the true threat to the public domain would come from an erosion in intellectual property protection. Because if creators could no longer gain protection through patent, for instance, they would instead rely on trade secrets. So instead of disclosing and describing their inventions, they would simply keep the knowledge secret.

IP does not keep knowledge away from people. All it does is keep someone from building a business around someone else's property.

So IP protection is in itself a means of the dissemination of knowledge, and a tool of development. This is the way that WIPO can continue to aid development—by promoting IP and by teaching countries and creators how to fully leverage an IP system tailored to their own situations.

Thank you.

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