The Wipo Development Agenda : Factoring in the 'Technologically Proficient' Developing Countries

The WIPO Development Agenda is in many ways, a reaction to the "one size fits all" mantra that has plagued international intellectual property (IP) law making for many years now. In an effort to counter this disturbing trend that does not pay heed to either the relative economic status of the member countries (particularly the developing ones) or of technological specificity, the Development Agenda clearly spells out that future "norm setting activities shall take into account different levels of development". Unfortunately, some of the IP and development literature that is sceptical of the above trend runs the risk of falling into the same trap of endorsing a one size fits all mentality. At the risk of oversimplification, the broad notion in the literature is this: Developed countries may need strong IP regimes, as they are highly innovative and strong IP regimes provide the requisite incentives in this regard. Developing countries however ought to implement only minimalist IP regimes, as they are hardly innovative and are often net importers of technology. This black and white categorisation ignores technological heterogeneity between developing countries. It also ignores technological specificity between sectors in the same country. In other words, emerging economies such as India, China, Brazil and Russia which are technologically more proficient in one or more areas of technology may require different IP norms than their relatively less proficient counterparts such as Nepal and Uganda. We need to therefore move away from an antiquated "developed-versus-developing" classification and differentiate developing countries according to their technological/innovative proficiencies. Such differentiation would help calibrate IP norms according to the specific developmental needs of the country in question. We use certain technology/innovation indicators to arrive at our list of "technologically proficient" developing countries (TPDC); countries that may require different IP norms, when compared with their less technologically dynamic countries. This paper does not seek to spell out the precise nature of IP norms that developing countries ought to adopt and implement. Rather, it is to suggest that this determination will vary from case to case and depends on factors such as the "technological capability" of the country in question and the specific "technology" sector under consideration. This paper therefore cautions one against the tendency to swing from a one "super size" fits all model to a one "micro-mini" fits all model. The technology/innovative capability indicators deployed and the TPDC list arrived are not precise and may need to be refined further. In other words, the list could serve as a starting point towards a more nuanced classification at the WTO/WIPO. Failing to acknowledge the technological differences between countries and of the different needs of TPDCs in particular may result in a weak development agenda implementation. The inherent schisms between these countries is likely to lead to tension and impact the progress of the agenda. Explicitly recognising these differences and leveraging them to further the cause of the agenda may be far more strategic in the long run