At a Global Congress on Intellectual Property and the Public Interest held in Washington, D.C. from August 25-27, 2011, a group of more than 180 experts from 32 countries formulated a set of recommendations intended to steer the development of intellectual property policy in a different direction from what it terms “the maximalist intellectual property agenda” of the last 20 years. See The Washington Declaration On Intellectual Property and the Public Interest.
The primary concern of the declaration’s framers is the belief that, for two decades or more, global IP policy has been overwhelmingly influenced by industry lobbying and the argument that ever more restrictive property rights and increasingly draconian enforcement measures are essential prerequisites to economic and technological development. The declaration suggests that many of the assumptions underlying this argument are unsupported by evidence. It also demands that concern for property rights, while important, should be placed in context with other important values, such as intellectual freedom, human rights, consumer protection, competition, and privacy.
The declaration asserts that–
International intellectual property policy affects a broad range of interests within society, not just those of rights holders. Thus, intellectual property policy making should be conducted through mechanisms of transparency and openness that encourage broad public participation. New rules should be made within the existing forums responsible for intellectual property policy, where both developed and developing countries have full representation, and where the texts of and forums for considering proposals are open. All new international intellectual property standards must be subject to democratic checks and balances, including domestic legislative approval and opportunities for judicial review.
Markets alone cannot be relied upon to achieve a just allocation of information goods — that is, one that promotes the full range of human values at stake in intellectual property systems. This is clear, for example, from recent experiences in the areas of public health and education, where intellectual property has complicated progress toward meeting these basic public needs.
The declaration’s recommendations fall into eight categories:
- Putting Intellectual Property in its Place
- Valuing Openness and the Public Domain
- Strengthening Limitations and Exceptions
- Setting Public Interest Priorities for Patent Reform
- Supporting Cultural Creativity
- Checking Enforcement Excesses
- Implementing Development Agendas
- Requiring Evidence-based Policy Making
The Washington Declaration is a thoughtful starting point for reexamination of IP policy in the next decade. However, the extent to which it will be influential remains to be seen. As suggested in a recent Techdirt article, “It’s such a fantastic list that you can almost certainly guarantee that policy makers will ignore it.”