A Project of the American Enterprise Institute and the Federalist Society

Statement of the Federalist Society President before the WIPO meeting, Feb 19-23, Geneva




My name is Leonard A. Leo, and I serve as Executive Vice President of the Federalist Society. We are an organization of over 42,000 lawyers, judges, law faculty, law students, and other individuals interested in the current state of the legal order. Importantly, the Federalist Society has, over the course of the past seven years, dedicated substantial resources to enriching the worldwide dialogue on intellectual property rights protection. It is therefore a privilege for me to be here today to deliver the following statement.

As we have said in the past, the Federalist Society's goal is not to endorse particular initiatives or proposals, but to instead ensure that the process by which international IP policy is developed is transparent and ventilates all relevant perspectives. With this in mind, our statement today includes, as a means of fostering balanced debate, the following analysis supplied by Southern Illinois Law Professor Mark Schultz and several other intellectual property scholars:

Two Visions of Intellectual Property and Development: Paternalism and Empowerment

The Development Agenda process has presented two conflicting visions of intellectual property. It has presented two conflicting visions of the people and nations of the developing world. It has presented two conflicting visions of WIPO's role in the world. One vision seeks to impose yet another form of paternalism on the developing world, by "protecting" it from intellectual property rights. The other vision seeks to empower the people of the developing world by enabling them to enjoy the fruits of their own boundless intelligence and creativity. WIPO should embrace this vision of empowerment.

The paternalistic vision says that the people and nations of the developing world are victims with little to gain from intellectual property rights. It says that they can thrive only by copying the creations of the developed world. It says that WIPO's mission should be to protect the nations of the developing world from the very institutions that have enriched the developed world. Development agenda advocates insist that each developing country that requests technical assistance from WIPO should have to endure a lecture as to its real "public interest." Those who embrace the paternalistic vision insist that they know best what the developing world needs: Radical alternatives to intellectual property proposed by NGOs and scholars who mostly live in well-funded comfort in the developed world.

There is a better vision. The vision of empowerment says that the people and nations of the developing world deserve intellectual property rights as much as any other people. Innovation, creativity, and hard work know no boundaries. The people of the developing world do not need protection from the property rights that have enriched the developed world. They do not need WIPO to remind them to act in their own public's best interest.

The people of the developing world face many challenges, but one resource in which they are rich is human talent. For example, most of the world's popular music has African roots. Also, the developing world has produced vast numbers of brilliant doctors and scientists.

Unfortunately, the people of the developing world all too rarely benefit from their great talents. African melodies and rhythms enrich the art and bank accounts of popular musicians in the developed world, but only a handful of African musicians obtain such commercial success. Most of them must leave their homelands to do so. The musicians who remain behind are impoverished by staggering rates of piracy and forced to find other ways to make a living.

Doctors and scientists in the developing world hardly fare better. All too often, they must leave their countries behind to find success. They go to the developed world, where they teach in its universities, care for the sick in its hospitals, and invent and innovate for the benefit of its people.

It does not have to be this way. The creators and innovators of the developing world are capable of building great futures for themselves, their families, and their people in their own homelands. But they need the support of the right institutions -free markets, the rule of law, and private property rights- in particular, they need intellectual property rights.

These Development Agenda meetings can have a successful, beneficial outcome. But success will not come from embracing and implementing every proposal on the agenda. Success will not come from compromising between the vision of paternalism and the vision of empowerment. Success will only come from implementing those proposals that are likely to empower the innovators and creators of the developing world.

We wish to offer a few benchmarks for a successful outcome to these meetings:

First, the Development Agenda process should end this year so that WIPO can begin to provide the enhanced technical assistance that many members have clearly requested and other members want to provide.

Second, the primary development goal of WIPO should be to assist developing countries to build systems that benefit their own citizens most, allowing them to create, innovate, and enjoy the fruits of their creativity and innovation.

Third, a successful outcome will enhance WIPO's capabilities to provide technical assistance and advice, especially in the areas of:

a. Bringing the products of IP to market

b. Securing investment capital for IP driven businesses

c. Building the infrastructure of an entrepreneur-friendly, innovation and creativity driven economy; and

d. Removing barriers to effective implementation and enforcement.

Fourth, the proposals which were originally scheduled to be considered at this meeting, which were widely embraced by most members last year, and which reflect a vision of empowerment should be enacted. Most of the proposals that have been put off for consideration until June reflect a far more paternalistic vision and should be rejected.

In conclusion, it is time to end the talk. It is time to end the cynical attempts by some members to slow down WIPO to gain negotiating advantages elsewhere. It is time to stop blocking progress in the name of a paternalistic ideology. WIPO should move forward with a development agenda that unlocks the tremendous potential of the creative, innovative people of the developing world by empowering individuals.