IPR regime

Published January 28, 2023

THE white man’s burden manifests itself by shoving policies down the throat of the Global South, convincing us that its ideas and approaches are the only way towards development. One such relic of neocolonialism is Pakistan’s regime of intellectual property law.

The Global North has long been advocating for a stronger intellectual property law, basing their stance on two main arguments: (a) moral and (b) economic. The moral argument is that ideas have no less moral claim to protection than actual and real property. This entails that art or pieces that contain the distinct personality of the author are protectable as copyrights, and inventions are protectable as patents.

The economic argument is that it is in the interest of less developed countries (like Pakistan) to have a strong intellectual property law regime as it gives an incentive to innovators/entrepreneurs to invest there. The argument goes that foreign innovators would only want to invest in Pakistan if their IPRs are protected, which would result in technology transfer from foreign to domestic markets. Additionally, domestic innovators/ entrepreneurs will only be interested in innovating if they have exclusive rights of production/ monetisation of the innovation for an extended period of time.

While these arguments are constructed skillfully and make sense theoretically, they stand neither evidential nor logical scrutiny.

Would a strong intellectual property rights regime benefit Pakistan?

The moral argument of protection does not stand for a nation that was deprived of technical and educational experience under long colonial rule, as it cannot compete with the level of innovation of countries that developed at the expense of the now developing country (Pakistan). Pakistan inherited a huge human resource problem which still persists, with 22.8 million children out of school. Bringing quality education to Pakistan and solving the issue of innovation would require that quality literature and material be made available as economically as possible. The possibility of such material being produced from scratch locally is unlikely as people are not skilled enough to produce material or literature that is on a par with the developed world; thus, the material must be imported at affordable costs.

In this scenario, the copyright law makes it expensive for developing countries like Pakistan to import such material or even locally print it; thus, slowing intellectual development in the country. This was the same argument furthered by the US in its context for delaying the signing of the Berne Convention for the Protection of Literary and Artistic Works for 100 years. Is it not hypocritical, or at least cynical, of the same country to insist upon the moral right of authors? Is it not immoral to deprive 22.8m (plus the entire Global South) of quality education?

As for the economic argument, using the same education example, it may be asked how IPRs will encourage more inventions in the domestic market due to competition if the population is not equipped with the knowledge and expertise to innovate in the first place? The only option Pakistani entrepreneurs have is to get a licence from foreign innovators. This, again, makes the product more expensive and causes IPR imports to rise while IPR exports are virtually non-existent. Additionally, if the licensor produces the product itself, it would be much cheaper to import the product directly from the manufacturer than the licensee, as local production would be costlier due to having to pay the usually very high licence fee.

Even the assertion that strong IPRs would result in foreign companies sett­ing up plants in Pak­istan for which they would hire locals, resulting in technology transfer, is a far-fetched conclusion. These companies only hire locals at posts that do not amount to anything more than skilled labour. Additionally, there is no empirical evidence to suggest that strong IPRs encourage innovation. On the contrary, the coronavirus vaccine fiasco at the hands of the pharmaceutical giants of the capitalist West serves as an example, where IPRs of technology/innovation could not reach the market of developing countries for weeks, causing thousands, if not millions of deaths.

IPRs at the development stage that Pakistan is in right now only serve to benefit the developed countries while the Pakistani taxpayer pays for the upkeep of the IPR tribunals, courts and other executive machinery. The case studies of all countries that have become technologically advanced have had weak IPRs (or at least a protectionist regime) to allow their population to take inspiration from and compete with foreign markets, be it the US or more recently China. Pakistan should follow the same methodology.

The writer is a lawyer.
Twitter: @muhammadareebk

Published in Dawn, January 28th, 2023

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