Intellectual Property And Development: Closing The Conceptual Gap

Intellectual Property And Development: Closing The Conceptual Gap

Alysia Lau is a JD candidate at Osgoode Hall Law School.

I spent this past summer interning with the UN Development Programme (UNDP) in Jakarta, Indonesia. Preparing to take part in the new Osgoode IP Law & Technology Intensive Program this coming fall gave me an opportunity to reflect on the intersection between IP issues and development work during my time in Southeast Asia.

At the start of my internship with the Access to Justice cluster, I immediately recognized that IP law, and anything connected to legal rights or issues in fact, only made up a negligible fragment of development concerns. There could be a number of explanations for this.

The first is that when we think about development issues, our initial thoughts relate to access to basic rights and services such as food, shelter, health, and security. This is where the roles of UNDP units such as the Poverty Reduction Unit and the Crisis Prevention and Recovery Unit are most relevant. Then there’s the Environment and Energy Unit, which ensures that village land rights and sustainable communities will stay in place throughout the development process. It is typically only after each of these units has been thoroughly examined and detailed that the role of my unit, the Democratic Governance Unit, arrives. It is only then that development issues dare to approach the wide-scale, long-term objectives of development, such as organizing democratic elections, increasing female participation in the parliamentary process, and strengthening the capacity of local and provincial governments. And finally, in what appears to be a tiny corner of the unit, lies our Access to Justice cluster, working away at, among other things, enhancing legal awareness, access to legal information, and access to legal services. For example, the Legal Assistance and Empowerment of the Disadvantaged (LEAD) Project focuses heavily on educating local communities on legal issues, particularly on domestic violence and land rights, and providing avenues of recourse for legal grievances by setting up complaint posts or training paralegals.

Another explanation for why the law does not play a larger role is that Indonesia is a place where the law tends to be employed as the last resort. In many areas, particularly in some of the more rural provinces, communities prefer to find remedies for grievances from informal justice actors, such as village and religious leaders, rather than formal justice actors, such as the police or the courts. The UNDP Aceh Justice Project in the Aceh province, for example, found it more meaningful to strengthen and clarify local “adat” justice customs and practices, in collaboration with formal justice actors, rather than focusing solely on increasing the role of the courts in these communities.

UNDP projects are primarily funded by donors. So, working on issues that can be easily sidelined in the face of more pressing development concerns means not simply that we must consistently explain to our donors why access to justice is important, but that we need to constantly reflect on and clarify to ourselves the goals of and meaning behind our work.

This, then, is my short pitch on why access to justice – and IP law – is integral to development programmes.

First, access to justice is closely linked to those “basic rights” identified in common development initiatives. A strong, current legal system can bolster and accelerate the development process, whereas a weak, outdated system can shackle it. For example, basic public services, including health and education, are provided by government agencies. If the quality of those services is not satisfactory, beneficiaries need to be able to recognize deficiencies, know how to find a remedy for them, and have the resources to obtain that remedy. Access to justice plays an essential role in each of those steps – increasing awareness of basic rights, educating communities on how to enforce those rights, and providing the means for them to do so. In fact, this scenario has become the launch pad for the development of an integrated public grievance redress mechanism by UNDP and the Government of Indonesia under the follow-up project to LEAD, Strengthening Access to Justice in Indonesia (SAJI). Therefore, a strong legal framework is critical to strengthening access to basic rights.

Intellectual property law can play an equally important part in the development process. The growing body of research over the last ten years suggests that strengthening and reforming intellectual property rights (IPR) is associated with accelerated industrial development, particularly through increased foreign direct investment and international technology transfer.[1] IPR reform also, however, has the opportunity to act as a key facilitator of the transition between the old and the new. Strengthening the IPR system is not merely central to ushering in new foreign investment but to protecting the commercialization of local and traditional products as well. For example, the Crafts Kalimantan Network is a non-profit programme that aims to market and commercialize the products of West Kalimantan indigenous weavers outside of Indonesia. In this scenario, IPR can be used both as an incentive to preserve Aboriginal crafts and culture and as a means of protecting those products during the commercialization process.  Therefore, IPR can play a key role in protecting the old and welcoming the new during and throughout a country’s economic development.

Although copyright, trade-marks, patents, and industrial design all seem conceptually distant from development issues, it is important to keep them in the big picture policy framework of the development process. Access to justice – be it criminal, administrative, health, labour, or intellectual property – is critical to economic development because it should always be an aide, not a hindrance, to obtaining those basic rights and services.

In the IP blogosphere of patents cases, copyright legislation, and trade-marks registrations, I realize that this post may seem like an odd one. However, interning with the UNDP has helped me understand that, particularly in a world that increasingly demands specialized expertise, it is important to expand rather than restrict the immense potential that intellectual property rights have to shape the arena outside of law and in particular in the development world.

This post is dedicated to the committed staff – and my dear co-workers – of the Democratic Governance Unit of UNDP Indonesia. Your work changes lives!

[1] See: Keith E. Maskus, “The Role of Intellectual Property Rights in Encouraging Foreign Direct Investment and Technology Transfer” (Prepared for the Conference “Public-Private Initiatives After TRIPS: Designing a Global Agenda” Brussels, July 16-19, 1997), online: World Bank Group

See also: Ashish Arora, “Intellectual Property Rights and the International Transfer of Technology: Setting Out an Agenda for Empirical Research in Developing Countries” (Paper prepared for WIPO International Round Table on the Economics of Intellectual Property, Geneva, November 26th, 2007), online: World Intellectual Property Office; and

Lee Branstetter, C. Fritz Foley & Karmal Saggi, “Has the Shift to Stronger Intellectual Property Rights Promoted Technology Transfer, FDI, and Industrial Development?” (2010) 2 W.I.P.O.J., Issue 1 at 93 .