Francis Gurry on the future of intellectual property: opportunities and challenges

Francis Gurry on the future of intellectual property: opportunities and challenges

October 2017

WIPO Director General Francis Gurry recently met with WIPO Magazine to reflect on the future as revolutionary developments in information technology (IT) and the life sciences begin to test the premises and practices of the intellectual property (IP) system.

In future, it seems inevitable that technology will increasingly dictate the shape of the international architecture and its governance

What do you consider to be the main challenges facing the IP system?

Today we are seeing the emergence of technologies that will have a radical impact on the existing IP landscape. While we do not yet understand their full dimensions, we can anticipate major challenges for IP administration, policy and governance. We can also foresee significant development challenges arising from the huge differences in technological capacity that exist across the world. But with every challenge there are opportunities. The developments that are creating these challenges are not negative in themselves. We simply need to try to understand how they will impact the existing IP system and its future evolution.

“Today we are seeing the emergence of
technologies that will have a radical impact
on the existing IP landscape.”

What is driving the administrative challenge?

It is linked to rising global demand for IP rights. As IP becomes ever more central to the knowledge economy, demand for IP rights continues to rise and this is likely to continue. In 2015, for example, 2.9 million patent applications were filed along with around 6 million trademark applications and 870,000 design applications. These are extraordinary numbers. Managing this rising demand is a big challenge for IP offices. But as new IT solutions come on stream, there will be new opportunities to better manage this demand and administrative IP processes in general.

Is the existing IP system fit for purpose?

The current IP system is fit for many purposes, but there may be areas in which it needs to adapt. Artificial intelligence (AI) and the life sciences are two major areas of technological and scientific development that will raise important challenges for IP, as well as for other policy areas, given their multidimensional nature. AI, for example, raises technological and economic issues ranging from incentives for the production of useful AI systems to employment displacement. And inevitably ethical and governance issues will arise from the application of IT in the life sciences, in particular. So we need to think carefully about what these rapidly evolving technologies will mean for the IP system and its administration.

And the policy challenges?

Policy challenges are a consequence of both globalization and the accelerating pace of technological change. Together, these forces are fueling the rapid development, uptake and use of new technologies around the world in a process of radical and continuous disruption. Rapid deployment presents an opportunity to ensure that all countries benefit from the diffusion and use of these technologies. In the policy sphere, these developments are already creating unprecedented practical opportunities for cooperation, for example through the establishment of multi-stakeholder platforms and other partnerships. Such opportunities will only expand.

The process of crafting policy, however, may prove rather more difficult because the existing international system was not designed to deal with the type of rapid change and radical issues we face.

How might it be possible to overcome this policymaking challenge?

One way might be for the international community to create a space for risk-free joint reflection, where countries can engage liberally in non-binding discussions. This would create opportunities for more even understanding across the world of the implications of these radical scientific and technological advances for the institution of IP. To achieve such understanding we need to open this space up to those who produce the technologies – the enterprise and innovation sectors – so that discussions are informed and relevant. Multi-stakeholder engagement is essential, both to clarify the role of the existing IP system and to identify the economic incentives required to encourage and sustain these technological developments.

“Many of the issues we face are multi-dimensional
in nature, and together they pose a huge
governance challenge,” 
notes Mr. Gurry.

Such an approach offers huge scope to improve the existing architecture of the international system, strengthen global cooperation and support more effective IP policymaking.

You also refer to a system challenge. What does that involve?

This is an emerging challenge that relates to the fundamental principle of transparency upon which the existing IP system is built. Let me explain. Anyone can seek a patent, trademark, design or other IP right as long as they satisfy certain conditions. One such condition involves publicly disclosing certain information about the new technology, product or service. This makes it possible for others to find out who owns a technology, product or service, and the scope of the associated rights. The purpose is to facilitate the efficient exchange and use of these rights, in support of technological development, business growth and social progress. Transparency has always been a cornerstone of the IP system. But the trend toward the privatization of functions traditionally undertaken by the public sector and the emergence of new technologies such as blockchain, which, broadly speaking, offers a secure means of record keeping, can be expected to further blur the lines between the public and private spheres.

How exactly will these trends test the transparency of the existing IP system?

A traditional function of IP offices is to maintain a public record of property rights in relation to knowledge, technology and cultural works. While blockchain technology, for example, may increase the system’s efficiency and security, it will do so by means of a private technology rather than a public register. A lot of experimentation is taking place with blockchain in the copyright sphere, and one can easily foresee its application in all areas of IP licensing. We need to be aware that with blockchain technology the private sector may become an ancillary record keeper. And we need to consider what impact that will have on the transparency of the market for knowledge goods. Will the use of such technologies boost the efficiency of that market? Will it improve IP rights management systems? It certainly has huge potential to do so.

Do you foresee a redefinition of existing IP rights?

Today, as big data gains traction and we move toward the Internet of Things, huge amounts of data are being generated. Much of it falls outside the traditional categories of the IP system. This is one of the reasons why researchers are increasingly turning to trade secrets to protect their pre-competitive laboratory work. We also see that major online platforms like Facebook and YouTube are creating vast quantities of valuable data from their activities. This gives them, and indeed all those who hold such data stores, a significant economic opportunity. There are, however, many complex questions coming to the fore about the ownership (in the traditional sense) of those data. These questions also touch on privacy and security issues. For example, who owns a person’s data, or the data generated by a person’s existence? Do we need to redefine ownership in relation to these data, and the rights and obligations that attach to them?

New technologies are being developed and diffused globally at unprecedented speed. The major challenge is to ensure that all countries benefit from the rapid diffusion of these technologies…

While some redefinition of property rights in relation to classes of data that fall outside classical IP categories appears inevitable, any recasting of existing IP rights will depend on what policymakers want to achieve. For example, if the goal is to encourage the collection and exploitation of data to enhance understanding of human health, policymakers will need to consider a range of questions. Do existing IP arrangements provide the right set of incentives to encourage this? Are additional incentives required? Or are there sufficient incentives in the market? Does the behavior of “data collectors” need to be regulated? Laws governing trade secrets cover some of these questions, but our thinking really needs to develop around these evolving issues.

What development challenges lie ahead?

There are major asymmetries in the world. On the one hand, advanced economies are investing trillions of dollars in R&D, and on the other hand, low- and middle-income countries and transition economies are confronting myriad frontline demands with very limited resources. At the same time, new technologies are being developed and diffused globally at unprecedented speed. The major challenge is to ensure that all countries benefit from the rapid diffusion of these technologies and that the huge differences in technological capacity that exist are not exacerbated. This is a critically important issue that requires careful attention.

What are the implications of these challenges for the governance of the IP international system?

Many of the issues we face are multidimensional in nature, and together they pose a huge governance challenge. The technologies that are creating these seismic shifts are cross-disciplinary – they touch on IP, ethics, privacy, security, biosafety and so on – but the existing architecture of international organizations was not designed to handle the multidimensional questions we face. Organizations currently tend to specialize in single issues, such as health, IP, labor or trade. And policy discussions are often exclusively State-driven. Issues may be addressed nationally, but they often benefit from broader discussion at bilateral or plurilateral levels, or within regional groups that share common interests. And, most broadly, they can be discussed at the international level. In future, it seems inevitable that technology will increasingly dictate the shape of the international architecture and its governance. While we can anticipate that any changes to the design of governance systems will be imbued with widely shared values of universality, balance and opportunity, we need to reflect carefully on how the international community can respond effectively to these rapid and potentially radical developments. A whole new world is developing and we can expect a very different ball game.

What is the most appropriate forum to handle these issues?

That’s a good question. It may be that a new organization is required to address them or it may be that we need to enhance cooperation between existing organizations. New organizations should only be created where there is an unfulfilled need. So thought has to be given to where an appropriate discussion on these issues might take place.

How do you see the public debate changing around IP?

In recent years we have seen vastly enlarged levels of public engagement, thanks in large part to the Internet, which has brought users into direct contact with IP issues. This is likely to continue.

There is, however, a tendency for IP to become the battleground for other issues. Take, for example, the controversy surrounding the patenting of the Oncomouse by Harvard University in 1988. People inevitably focused on the rights question because the publication of a patent application is generally the first public expression of a new technology. But in reality the more fundamental issue was whether it was acceptable or desirable for researchers to be able to manipulate higher organisms. Today we see a similar scenario playing out in relation to the application of CRISPR-Cas9 gene-editing technology, which increases the capacity to manipulate all organisms and has huge implications for health, agricultural and industrial biotechnology.

Are you optimistic about the future?

In general yes. The stakes are high. We need to hone our risk management techniques.

About the “Oncomouse” patent

In 1988 the United States Patent and Trademark Office (USPTO) granted the world’s first patent on a higher life-form (patent number 4,736,866). Developed by researchers at Harvard Medical School, the patent for the so-called “Oncomouse” claimed “a transgenic non-human mammal whose germ cells and somatic cells contain recombinant active oncogene sequence introduced into said mammal.” The invention was seen as an important development in understanding cancer and developing more effective treatments. However, it also raised deep ethical concerns which sparked intense policy debate about the desirability of patenting higher life-forms in the United States and many other jurisdictions.

Source: WIPO