Over recent years, there has been an unprecedented increase in the scope and level of protection of intellectual property rights (IPRs) including patents, copyrights, trademarks, and geographical indications. This trend has generated new opportunities, but also new tensions around key public policy concerns such as public health, food security, education, innovation, transfer of technology and biodiversity management. While much of the debate still focuses on the WTO TRIPs Agreement, higher standards of protection, with narrowed down exceptions (TRIPs - plus) are increasingly being included in new bilateral and regional free trade agreements. In a knowledge based- economy, a strong understanding of IPRs and their development implications is indispensable to informed policy making in all areas of human development.

As a contribution to this debate, the UNCTAD/ICTSD project on IPRs and Sustainable Development, the Hong Kong University and IDRC have organised the present regional dialogue on Intellectual Property, Innovation and Sustainable Development. This regional dialogue aims to:

1. To provide a platform for a strategic discussion between relevant stakeholders (Geneva-based negotiators, capital-based policy makers, academia, the private sector and NGOs) on relevant trends and thematic issues in the area of intellectual property (IP) and their implications for sustainable development;
2. To develop elements of a "regional agenda" for development-oriented IP policies and informal mechanisms for advancement it in the coming years, among others, through joint research and networking;
3. To analyse current trends in IP standard-setting in the East and South East Asian region;
4. To explore linkages between sustainable development policies and intellectual property in four specific issues areas including health, plant varieties and biotechnology, geographical indications and providing incentives for public interest R&D.

The dialogue will be organized and conducted as an open informal process bringing together key stakeholders with a variety of interests and experiences.

Description of the topics

The topics to be addressed in the dialogue have been chosen in collaboration with regional partners and have been design in such a way that they address regional concerns. The main topics are the following:

General trends in the field of IPRs (harmonization, bilateral/regional agreements

Currently there are a number of international and regional processes seeking increased harmonisation of IP regimes. These processes are occurring at the international level in the World Intellectual Property Organization (WIPO) (e.g. the New Patent Agenda), at the regional level (ASEAN) and in bilateral free trade agreements (i.e. Singapore-US, Thailand-US and Cambodia-EU treaties and negotiations). Models for harmonisation being used in negotiations are mainly based in the legal regimes of the Triad (US, EU and Japan). Harmonisation processes include substantive and procedural features of IP policy that could reduce or affect important TRIPS flexibilities necessary to address public interest concerns such as health, biodiversity, technology transfer and access to knowledge.

Health, IPRs - 2005 and beyond

On 1 January 2005, developing countries across-the-board, with the exception of certain least developed countries, will have to fully apply TRIPS patent standards for pharmaceutical products. While many generic drugs are being currently reproduced in off-patent countries (e.g. India), it should be noted that a large number of applications are waiting for recognition under the TRIPS mailbox system (Article 70). This new scenario will restrict the capacity of producers to provide generic versions of patented medicines at low cost. At the same time the in-built flexibilities of the TRIPS Agreement, as recognised by the Doha Declaration on the TRIPS Agreement and Public Health, are not fully used by developing countries or are being curtailed by new commitments in bilateral or regional free trade agreements.

Medium and long-term strategies for the creation and improvement of domestic manufacturing capacities should also be explored. Current policies and the legal environment in general, for pharmaceutical production as well as the feasibility of expanding existing manufacturing units or setting up new ones, should be analysed. Possible policy instruments such as subsidies (active - direct transfer of funds, or passive - tax breaks), investment regulations and government procurement policies could assist in the creation or improvement of domestic manufacturing capacity. Also, developed countries could establish incentives to improve technology transfer to the least-developed countries (Article 66.2) or provide technical assistance to enhance technological absorptive capacities of host countries so as to complement any potential foreign collaboration in the sector. Furthermore, South-South technology transfer could also be explored.

Biotechnology, IPRs and Sui Generis Systems - Protection for Plant Varieties

Under TRIPS Article 27.3(b) WTO Members are required to protect plant variety either through patents, a sui generis system or a combination of both. The TRIPS Agreement does not provide a definition of a sui generis system. Many countries tend to follow the UPOV model (International Union for the Protection of New Varieties of Plants), which provides protection mechanisms for the development of "industrial" plant varieties. The People's Republic of China, the Republic of Korea and Japan are among the current Asian members of UPOV. Other countries, such as India and Thailand, have established their own national legal systems of plant variety protection (PVP) featuring, among others, the recognition of farmers' rights and the protection of domesticated and wild plant varieties.

The main challenge for the region is to identify what kind of system will be most suitable to attract investment, promote technology transfer and protect local industries, while at the same time ensuring food security, promoting farmers' rights and securing biodiversity. This is particularly important for a region where socio-economic disparities are large, ranging from internationally competitive biotechnology and seed industries to large parts of societies that still use small-scale agriculture as the basis for food production. In this sense the dialogue will further explore the impact of the introduction of new or existing PVP models on sustainable development, and options for sui generis systems drawing from experiences in and outside the region.

Geographic Indications and 'Traditional Names'

While most of the commonly known Geographical Indications (GIs) stem from continental Europe and are mostly applied to wines and spirits, there is an increasing awareness that GIs can be used as a marketing tool and a potential source of additional revenue in developing countries. Due to the fact that GIs are recognised, and not created; that they are linked to characteristics of a specific region, and that they are usually not reserved to a single producer, GIs offer interesting opportunities to particularly those parts of society that depend on agriculture, artisanal and craft work, or particular herbal products. As such, protection incentives could lead to the development of niche markets and small and medium-sized industries, specialising in the production and marketing of certain products. While still small in number, there are some well-known names associated with Asia (e.g. Ceylon Tea)

A further issue raised by GIs is, whether they may serve as methodological basis for the protection of 'traditional names' linked to specific territories. While the protection of traditional knowledge, as outlined in the Convention of Biological Diversity and strengthened through the Bonn Guidelines, has been the subject of negotiations so far only little headway has been made. One possible area of advance could be the protection of 'traditional names', through GIs, for the positive protection of products such as Basmati Rice or Persian carpets.

The dialogue will compare regional experiences on GIs, paying particular attention to institutional and legislative limitations in the different countries, especially with respect to producers and regulatory bodies. Furthermore, their cost effectiveness will be analysed, as the GI protection process can lengthy and tedious, bearing in mind initial investment costs and the uncertainty of their actual future value.

IPRs and Promoting R&D for the Public Interest

While there is substantial discussion on the role IP plays with respect to technology transfer and diffusion in developing countries, very little is known about the impact IP has, directly or indirectly, on identifying and realising research priorities that respond to public needs. Incentives of ownership, offered by a global IP regime, of the tools and findings of research have substantially increased the relative share of private investment in global R&D with respect to public research. Additionally, while much basic research is still funded by the public sector, it is increasingly licensed to industries.

Yet, many of the greatest research needs, such as neglected diseases, environmentally friendly technologies or agricultural research in drought prone areas, have received only little attention due to a general lack of market value, thus respective public funding has become essential. Bearing in mind the continuing privatisation of R&D, discovery of new incentive structures are necessary to deal with the research needs of neglected issue areas. Furthermore, it is often argued that the existing initiatives, which actually do research for public interest R&D, are hindered by the current IP system.

The workshop will examine the impact of IPRs on R&D in general, with a focus on R&D in the public interest. Among the specific issues to be considered, it will:

a) Examine ways in which the IP system might constitute a stimulus or hindrance to public interest R&D;
b) Analyse the use of research exceptions or other relevant exceptions in Patent Laws in the region;
c) Study possibilities to facilitate access and use of technical information in patent documentations and databases by researchers
d) Explore alternative approaches to IP and public interest R&D such as the US Bayh-Dole Act, Public Intellectual Property Resources for Agriculture (PIPRA), the CAMBIA Biological Innovation for Open Society (BIOS) Initiative and BioForge, an open-access regime for R&D in the biological sciences, the African Agricultural Technology Foundation (AATF), the cost-shared based 'R&D Treaty', the open-source based 'R&D plus' and others, and their relevance and potential for Asia.