THE legitimacy and indeed the usefulness of intellectual property (IP) lie in achieving a proper balance between public interest and the temporary private privileges that society provides as an incentive to those who innovate.

If that balance is achieved in laws and practice, then the IP regime serves the needs of people and development, and is allowed to function without too much friction. If the balance is tilted to private privilege at the expense of public interest, one can expect cries and demands to correct the imbalances in the IP system, to restore the public interest and the right to development.

The WTO's TRIPS Agreement has been severely criticised for the high, inappropriate and mandatory IP standards and models it set for developing countries. Since its enforcement, there has been increasing public dissatisfaction or outrage over adverse effects on access to medicines and on farmers' rights, bio piracy, and barriers to industrial technology transfer.

Increasingly, public interest groups and developing countries alike are stressing that TRIPS contains not only obligations but also flexibilities such as discretion for states to define criteria for patentability and compulsory licence. Understanding and making use of these are in the nature of damage limitation

More pro active proposals by developing countries are emerging, such as seeking to counter bio piracy through disclosure requirements in the TRIPS, a ban on patenting of life, exemptions from patentability for climate friendly technologies, and enlarging the space of limitations and exceptions in copyright.However, the big companies that have benefited from the TRIPS regime and the developed country governments have in recent years been even more active in initiating measures to remove or further limit the existing flexibilities in TRIPS. New TRIP Plus initiatives There is a major attempt to introduce new treaties in the WIPO like a substantive patent law treaty, or to reform existing treaties like the Patent Cooperation Treaty. The dominant proposals in the new treaties would involve the global harmonisation of patent administrative practices and laws.

They would result in an inappropriate one size fits all model of IP law and administrative procedures, that would have adverse effects on socio-economic development in developing countries, on their consumers and local producers. There are also attempts to subject developing countries to much stricter enforcement of IP through TRIPS Plus measures, or obligations that go beyond what TRIPS requires.

This IP Enforcement agenda includes making use of international organisations relating to customs authorities (WCO), postal services (UPU) and health (WHO), to adopt new rules and programmes that give them the mandate to become IP enforcement agencies.An example of how this can go wrong for the pubic interest is the seizure of legitimate generic medicines which were in transit from one developing country to another in European airports. They were seized by customs officials who were tipped by European drug companies owning the patents that the products may be counterfeit or in violation of other IP laws. In fact, the medicines were lawfully produced in developing countries and were being transported to other developing countries.

WIPO has been a forum in which developed countries have attempted to establish new norms and programmes that move towards global harmonisation. Recently, the US proposed changing the Patent Cooperation Treaty so that the approval by a few developed countries' patent offices of a patent would make it much easier (almost automatic) for the patent to be also adopted by all PCT member states. This proposal was unacceptable to developing countries.

The lesson of TRIPS is that international harmonisation of IP in line with the developed countries' standards and models can wreak damage and overturn the balance required in the bargain between society and IP holders. Further harmonisation along the same lines risk doing even more harm. One size does not fit all. This is one important lesson when seeking the right equation between IP rights and wrongs.

Courtesy South Centre, Geneva