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Meir Perez Pugatch
IP Policy & Commercialisation of Knowledge Assets - University of Haifa
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Policy-making in the field of IPR is becoming increasingly complex (some would even call it Mission Impossible).
The IP policy-maker himself is exposed to some enormous pressures and rival interests, both by external players and by his own institutional "surrounding".
Thus, for example, a certain policy maker in a given European Commission Directorate may not only be "overloaded" by a huge amount of data and inputs by different interest groups, he may also find himself promoting a given piece of IP agenda that is inconsistent with (and possibly even contradicts) other IP agendas promoted by his colleagues in other Directorates.
To this extent, the concept of a single and coherent "institutional" policy-making agenda may be long gone.
Three approaches to IP Policy-making
Taking the above into consideration, and given the tasks ahead, one could still identify three main policy-making approaches in the field of IPR, which are also relevant to growth and innovation.
i. The classic approach
The first approach considers IP-related activities from a social welfare perspective, i.e. it focuses on the benefits and costs to society from these activities.
Such an analysis ultimately focuses on the extent to which different actions in the IP field affect society as a whole. This approach may be called the classic approach, as most economists and political economists (including this author) tend to use different elements or variations of this perspective when analysing different IP policies.
The overall framework of the classic approach is subject to the so-called structural trade-off of the IP system: that by providing incentives for innovative activities and the creation of knowledge products in the future, IPR restrict access to existing knowledge products at present, given their monopolistic feature.
ii. The international approach
A second approach, which analyses different IP-related activities, may focus on the internationalisation (or globalisation) of IP environments and their implications on various economic activities, such as trade, foreign direct investments and technology transfer.
This approach, which we may refer to as the international approach, is ultimately linked to the global IP environment in general and to the WTO agreement of trade-related aspects of intellectual property rights (TRIPS) in particular. Today the regional and bilateral aspects of IP trade-agreements have returned with a vengeance.
The international approach is often linked to the North-South context – that is the analysis of the extent to which the global IP environment affects the economic and social well-being of developed and developing countries, mostly the latter.
iii. The Industrial approach
Finally, we can also choose to analyse national and regional IP-related policies in the context of knowledge creation, knowledge exploitation and knowledge distribution.
This approach, which we may term the industrial approach, tends to examine the extent to which the IP field may promote (or obstruct) countries’ industrial and commercial capabilities, at least as far as knowledge-based products are concerned.
The term IP creation broadly refers to the extent to which a country or a region (such as the EU) is able to translate its innovative base into “exploitable” IP assets. In other words, an analysis of IP creation considers the amount of IP assets generated as an integral part of a region's ability to create applicable knowledge that has the potential to be translated into new technologies and products.
Factors associated with this dimension may be treated as input factors and include the following:
- Amount of IP generated – both in absolute terms and relatively to other countries.
- Distribution of IP generated – across different fields of technology.
- Internationalisation of IP activities – in terms of ownership of IP abroad and partnerships both between EU-based and non EU-based entities.
The term IP exploitation, on the other hand, broadly refers to the extent to which the EU is able to translate the IP potential of EU-based entities into industrial and commercial results. Factors associated with this dimension may be considered as output factors:
- Volume and share of GDP of IP-related transactions – including international transactions of knowledge-based products (such as from royalties and license fees).
- Public-private partnerships (including joint ventures and spin-off companies) aimed at exploitation and commercialisation of IP assets.
- Enforcement of IP rights – among other things as measured by the level of counterfeiting.
IP policy-making in the EU – focus on the PROCESS
Coming back to the opening text of this intervention, it would be virtually impossible to expect the individual policy-maker to come up with the "perfect" policy tool-kit that would answer all the challenges and opportunities associated with the IP field.
Put forthrightly, the economic, commercial, political, social and moral aspects of IPRs are too complex for one person, and even for an entire European Commission Directorate, to handle.
Combining the three approaches above and especially the industrialized approach requires stronger and better coordination between European IP-policy makers.
Arguably, the current process of IP policy formation at the EU level needs to be improved. It is becoming increasingly frustrating to observe how different IP issues (Community Patent, Enforcement & Criminal Directives, CIID, etc) are handled.
A more efficient and informed IP policy-making process is therefore needed, based on three major pillars:
The first pillar concerns the preferred approach to policy making in a given IP area and subsequent sub areas – i.e. the extent to which the goal of this policy-making is based on the classic, international and industrial approach. While there is an obvious need to take all of these perspectives into account, the EU must eventually decide on the leading direction. Here I would stress (subjectively) that the industrial approach is particularly important to the EU current needs, not least in the context of the Lisbon Agenda.
The second pillar concerns the need to create better harmonisation between different EU policies. Notably it is important to ensure that the IP policy-making in one area is more in tune with other areas, and vice versa (both in IP and in other related areas, for example competition rules). Here, more enhanced intra- EU Commission consultation mechanisms are needed (for example between DG ENTERPRISE, DG MARKET and DG COMP)
Finally, for each and every IP topic, there is a need to ensure, throughout the entire policy-making process, that the strategic objectives identified by the policy-makers are indeed reflected in the proposed legislation, especially in its final phases. Too often we encounter a situation in which political compromises essentially nullify or even overturn the principal objectives of the legislation.
Summing up
Defining IP policies to promote growth and innovation will be greatly enhanced by focusing on the process of forming such policies. In the EU there is a greater need for an inter-agency and intra-agency coordination. Such coordination can ensure that the EU's strategic goals are better reflected in the proposed IP legislation, particularly in their final stages, where they are exposed to political pressures and compromises that may undermine the entire rationale of these policies.