Intellectual Property Responsibility: A Manifesto

Abstract

This opinion is an attempt to provoke a debate about exploring the responsibility narrative of international intellectual property (IP). It aims to offer a lens for interpreting IP norms within the system and outside IP when it interacts with other branches of law. After providing the context, this opinion first engages with the concept of responsibility, followed by examining responsibility in international IP. Then, it explores how access, sustainability, and empowering less developed countries are facets of responsibility that are embedded in the IP system. The opinion, therefore, is a call to develop a fair and responsible IP system.

1 Introduction

International intellectual property law as a system has come a long way since the first multilateral treaties – the Paris and Berne Conventions – followed by the commodification of IP through the trade-related aspects of intellectual property rights (TRIPS) which successfully spread global minimum norms.¹ The rise of free trade agreements has transformed IP through assetization by treating IP rights as assets and, through trade and investment agreements, IP has been re-conceptualized as an investment.² The increasing importance of IP in the knowledge economy does not allow IP to be a self-contained system, and therefore there are increasing interactions with different sub-fields of international law, such as public health, trade, investment law, and so on.³ In doing so, IP emphasizes the “rights” approach and thus the current international IP regime has come under scrutiny for over-protection and has been criticized for a lack of attention to developing IP systems that endorse social functions.⁴

The globalization of IP was not envisioned to be a substitute for international public good and instead it was hoped to prevent market failure through incentive justification.⁵ To this end, international IP treaties have incorporated flexibilities in the form of exclusions and exceptions to IP protection in order to interpret and integrate societal goals.⁶ The COVID-19 pandemic and the debate surrounding the equitable distribution of vaccines further exposed the tension between IP norms vis-à-vis the public interest. It seems that the IP system is creating two kinds of narratives, namely “IP for all”, and “IP is all”. Here “IP for all” refers to the scholarship that views IP’s primary act as being inventive in order to serve the public interest. Whereas “IP is all” highlights the private property regime of IP protection that emphasizes exclusivity. The fact that the IP system is strongly linked to the R&D function tailored to recoup the investment made by the IP holder in lieu of distributive justice continues to introduce tensions, and systematizes the fallacy of the incentive theory.⁷

Many scholars have engaged in the quest to develop an approach to embrace public-interest-driven IP rights. Some have introduced the concept of the commons into the IP regime, and a few have called for the construction of an “inclusive right” that creates spaces for non-exclusivity that could defeat any claim of exclusivity in (intellectual) property.⁸ Such a proposition would aptly accommodate the public domain in the IP sphere by “creating inclusive privileges to use”⁹ and allow us to “renew our thinking about what intellectual property is …. An IP right that could be able to grant inclusive rights would better pay tribute to the collective and share use”.¹⁰ Similarly, authors have used freedom of expression as a tool to address digitization challenges to copyright protection in order to find a balance between users and right holders.¹¹ Human rights principles have often been used when IP conflicts with public health or other public interests,¹² reminding us that IP should not be read as anti-social.¹³ The increasing use of human rights principles has echoed the idea of developing a human rights framework for IP.¹⁴ However, the use of human rights as a framework for IP has been equally contested.¹⁵

The point here is that the IP landscape is changing, and IP is no longer viewed in the way that it was before the emergence of the TRIPS Agreement or after the operation of the TRIPS Agreement.¹⁶ This forces scholarship to engage in the emerging discourse on global constitutionalism and has further led scholars to examine the development of IP through “new constitutionalism”.¹⁷ The reality of such an acceleration of IP norms shifting towards IP holders relies on the idea of proprietarianism.¹⁸ This emphasis on the property function of (IP) law does not give due attention to the non-property functions of law.¹⁹ In the words of Peter Drahos, IPRs are duty-bearing privileges and therefore there is a need to adopt an instrumentalist approach to IP that promotes duties and responsibilities.

This opinion is an attempt to provoke a debate on exploring the responsibility narrative of international IP law. It aims to offer a lens in interpreting IP norms within the system and outside IP when it interacts with other branches of law. To achieve this goal, the opinion is divided into three parts. The first part (Sect. 2) considers the concept of responsibility, followed by the second part (Sect. 3) which examines responsibility in IP theories and international IP treaties. The third part (Sect. 4) will then broadly explore how access, sustainability, and elevating less developed countries are facets of responsibility that are embedded in the IP system.

2 Responsibility as a Legal Concept

Responsibility is a multi-faceted and complex concept.²⁰ The contested meaning of responsibility has been a common subject of discourse amongst scholars and theorists. In legal terms, responsibility is viewed as regulating the actions of individuals and states. More broadly, this cardinal concept of law is inextricably linked to the modern conceptions of legal orders and norms.²¹ Responsibility in a basic sense can thus be seen as an expression of a duty to give reasons with respect to an outcome or perhaps a “liability to respond” when a certain harm is caused.²² The term “respond” allows us to see how this idea of responsibility echoes the binding nature of law. By imposing the duty to justify, the idea is built that certain actions give rise to the consequences that entail responsibility.

Responsibility as a concept is intertwined with the idea of rights and justice. Many theorists rely on responsibility as an egalitarian strand of a theory of rights that emphasizes a balance of social costs and the expected benefit of the law.²³ Some have linked responsibility to the idea of corrective justice by holding a person responsible for the consequences that their conduct has had for another and by redistributing losses according to the principle of justice.²⁴ Responsibility in the international setting often refers to the state and relates to its citizens and itself. Often sectioned under political responsibility,²⁵ this idea of duty has its reference point in the political community (authority/state) and the prosperity of this community. The term “responsibility” has been used differently in different societal contexts in philosophy, tort, jurisprudence, organizational theory and other fields.²⁶

This opinion reads responsibility as creating obligations that include both positive and negative responsibility. In the context of IP, negative responsibility refers to obligations not to harm other property, and positive responsibility is an obligation to use and promote IP for general social welfare.²⁷ In this spirit, the opinion embraces Drahos’ reading of IPRs as the duty of privileges where a duty must be created to address the imbalance created by monopolistic rights. This opinion explores the responsibility framework in the IP system which would seed an argument to assess and guide the behaviour of IP holders and states to protect and promote IPRs.

3 When Intellectual Property Meets Responsibility

3.1 Theoretical Contestation

The IP system provides a temporary monopoly to inventors so that they can restore the incentive to innovate.²⁸ IP, therefore, permits the exclusive use of knowledge to encourage further development.²⁹ Thus, two interests are protected by the IP system: (i) the incentive to innovate by granting a temporary monopoly, and (ii) the dissemination of knowledge in a manner conducive to social and economic welfare. The utilitarian justification of IP is premised on the idea of “the greatest good of the greatest number”.³⁰ This justification of IP law empowers the exclusive rights bestowed upon inventors to stimulate invention and to recoup their costs. This may come into conflict with the public access to such inventions; therefore, at present, this monopolistic right is offered for a certain period and the quest for striking a balance between exclusive rights and access is ongoing.

The monopolistic nature of IP rights embodies the responsibilities of IP holders. In other words, the responsibility of the inventors to the public is fulfilled through their inventions, and the state’s responsibility owed to the public is fulfilled while acting as the mediator in drafting laws for the protection of IPRs. Moreover, the access given to the public via laws to enjoy the fruits of these inventions serves as the “greatest good of the greatest number”, thus balancing it against the exclusive rights given to the inventors. However, the question remains whether the maximization of net social welfare is adequately achieved.

The incentive theory postulates the idea of an incentive mechanism for innovation by allowing the owner to benefit by exploiting. Although this rationale for IP protection has increasingly been contested, it does offer stability to the system because the incentive theory provides IP protection to achieve the public good.³¹ To this end, IP provides exclusive rights that allow innovators to recoup their investment and incentivize them to innovate. In doing so, it prevents market failure and achieves a desirable social end. Therefore, issues arise as to what extent the public should be burdened when granting exclusive rights to innovators, because granting such rights, given the cost of IP products, is generally beyond the reach of the public. Therefore, critiques of the incentive theory have stated that the socially beneficial is backed by “inherent motivation” but not by an externally supplied incentive, thus portraying the incentive theory as a fallacy.³² Based on this premise, it could be argued that if innovators are internally stimulated to engage in innovation, the responsibility towards society is inherently present within them even before the actual invention is created. Although the utilitarian theory is widely accepted to justify IPRs, it is not without its imperfections. The above analysis suggests that the issue of responsibility deriving from this theory is highly contextual.

3.2 International Intellectual Property Treaties

International IP treaties do not refer to the term “responsibility”. However, several provisions of these treaties embrace the idea of responsibility. In other words, international IP treaties argue that states and right holders should be responsive in exercising IP norms to promote social and economic welfare. Although there is no specific provision referring to the responsibilities or duties of IP holders, the language used in international treaties is focused on the public interest aspects of IPRs. During the drafting of the Paris Convention, the discussion was focused on the public interest aspects of industrial property. One of the negotiators of the Paris Convention mentioned that: “[It] is advisable to establish legal rules, according to which the patentee may be induced, in cases in which the public interest should require it, to allow the use of his invention to all suitable applicants for an adequate compensation”.³³

The Berne Convention laid down the foundation for exceptions and limitations to copyright protection, which is further tailored by courts at the national level. The Berne Convention allows permissible reproduction of copyright material by fulfilling three criteria; (i) reproduction of a copyright work is allowed in certain special cases, (ii) such reproduction does not conflict with a normal exploitation of the work, and (iii) use does not unreasonably prejudice the legitimate interests of the author. This three-step test has evolved and been nurtured to safeguard access to knowledge and promote creativity in society. To this end, the Max Planck Declaration acknowledges that “the public interest is not well served if copyright law neglects the more general interests of individuals and groups in society”,³⁴ and provides guidance on the use of a step test arguing that it should be done in a manner that accommodates scientific progress, cultural, social, or economic development.³⁵

The national courts further expanded the scope of exceptions and limitations to copyright law. For example, in the Delhi University Photocopy case,³⁶ the Delhi High Court expanded the scope of Sec. 52(1)(i) of the Indian Copyright Act,³⁷ which is a relevant provision for exceptions and limitations. The copyright suit was brought by international publishers against a photocopy service conducting its business from the University of Delhi. The court held that photocopying, reproduction, and distribution of copies on a large scale and the sale of unauthorized compilations of substantial extracts from the plaintiffs’ publications into course packs fell under fair use. The judgment gives the impression that any coursework, irrespective of the medium, including translations of audio books which are prepared by a teacher, should be considered permissible use. According to the court, “the purpose of copyright protection is to increase, not impede, knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public”.³⁸ Though this reading does not specifically mention digital course books, considering the broad rationale upon which the decision is based, it can be read that the decision also covers them.

Exceptions and limitations have shaped legal development to accommodate emerging issues of access. One is the adoption of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.³⁹ This Treaty aims to improve the availability and cross-border exchange of certain works and other protected subject matter in accessible formats for persons who are blind, visually impaired, or otherwise print-disabled.⁴⁰ Similarly, the Max Planck Institute for Innovation and Competition Law initiated an “international instrument on Permitted Uses in Copyright Law”⁴¹ that emphasizes incorporating a balancing copyright mechanism into a national system that permits freedom of expression, and social, political, and cultural objectives, etc.⁴² The declaration argues for a shift from the idea of “minimum protection” to a “minimum permitted” approach to copyright law that gives regulatory freedom to states to develop systems based on their need and rebuts the pressure that states may exert in international negotiations concerning bilateral and regional agreements.⁴³

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is designed to provide a floor for minimum standards of IP rights. The TRIPS Agreement acknowledges the social objectives of IPRs through provisions related to the objectives, principles, and flexibilities enumerated in the Agreement. Articles 7 and 8 of the TRIPS provisions provide a normative framework within the IP system to support a responsibility framework for IP. Article 7 sets out TRIPS objectives that emphasize the protection and enforcement of IPRs that would mutually benefit both users and right holders through a balance of rights and obligations.⁴⁴ Article 8 emulates the principles of TRIPS by declaring that the public interest aspects of IPRs are to be considered when implementing laws and regulations without undermining rights.⁴⁵ Much has been said on the role of Arts. 7 and 8 and there is a consensus that both Articles offer a guiding light for the interpretation and implementation of the TRIPS Agreement and act as a bridge to connect IP with other branches of law, reminding us that such intersections should embrace balancing principles. Recently, the WTO Panel on Australia’s Tobacco Products⁴⁶ reiterated the role that both Articles play in the interpretation of TRIPS and in protecting broader societal goals by safeguarding policy space.⁴⁷ Therefore, the flexibilities that Arts. 7 and 8 offer to states in protecting the public interest based on local needs demonstrate a “glocal” space recognized in the international IP system.⁴⁸

Overall, Arts. 7 and 8 bring fairness to the system and ensure global justice duties.⁴⁹ Increasingly, recent trade deals such as the UK–New Zealand Free Trade Agreement⁵⁰ and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) have explicitly used the language of Arts. 7 and 8 in the IP chapter of the trade agreement under the title “Objectives and Principles”.⁵¹ This further confirms the role that both Articles play as internal limits to the IP system, connecting IP with societal goals and the TRIPS system when it interacts with other branches of law.⁵² Thus, both provisions act as a shield to protect the public interest when IP comes into conflict with them and they also empower states to be responsible.

4 The Quest for a Responsible Intellectual Property System

This section explores three burning issues in international IP that need to be viewed within the framework of the responsibility debate.

4.1 IP (Access) as a Responsibility

Much has been written on the question of whether IPRs are an obstacle to equitable access to knowledge. The critics argue that the IP system promotes a minimalist view of promoting the access narrative in IP. However, in some cases countries have optimized TRIPS flexibilities to enforce fair access to educational material under their copyright regimes.⁵³ Nonetheless, the much-discussed issue of access to medicines and IP has been re-sparked, and the debate received even greater attention during the COVID-19 pandemic. The exclusive nature of the patent system allows owners to monopolize markets and regulate the price of and access to their inventions based on an incentive rationale.⁵⁴ This allows pharmaceutical companies to rationalize exclusivity with the argument that it encourages new pharmaceutical innovation and motivates the development of valuable information without the risk of knowledge spillovers through trade secret protection.

This incentive rationale was further challenged during the COVID-19 pandemic.⁵⁵ India and South Africa proposed that the WTO waive certain provisions of TRIPS that guaranteed the right holders to use, produce, and sell the COVID-19-related products and processes under IP protection.⁵⁶ In the middle of the pandemic, the world was divided on whether waiving some sections of TRIPS concerning public health would ensure the equitable distribution of vaccines. The proponents argued that “IP as innovation incentives” cannot be justified in times of crisis and that encouraging private IP monopolies on vaccines would result in inequitable distribution of vaccines.⁵⁷ Opponents for their part argued that given the sophisticated and expensive nature of vaccine development, waiving IP rights in the middle of the pandemic “could leave the society vulnerable to such emerging variants of COVID-19 if the current IP holders/vaccine developers abandoned research efforts as a result of such a waiver”.⁵⁸ Therefore, it was argued, the waiver was likely to negatively impact innovation.⁵⁹ Both the proponents and opponents of the TRIPS waiver proposal have their merits. After two years of negotiations, the outcome has been more inclined towards the optimum use of TRIPS flexibilities and clarification of compulsory licensing provisions.⁶⁰ Thus, the debate shifted from necessity to flexibility.⁶¹ In other words, the final outcome of the Ministerial Conference was focused on clarifying the scope of Art. 31 which dealt with compulsory licensing.⁶²

Nonetheless, the COVID-19 debate further highlighted the relevance of “access” in the system to ensure that IP performs its social function.⁶³ Access to IP subject matter is affected because of the nature of IP rights, allowing innovators and creators to limit and leverage access based on conditions. On this point, scholars have argued that the “opportunity to leverage access is designed to incentivise makers to produce valuable subject-matter, in theory…. [The] short-term restriction is thought to best serve the long-term interest of the public (i.e., society or the community-at-large) on the basis that more subject-matter will be created and disseminated as a result”.⁶⁴

Although the IP system offers flexibility and exceptions to balance rights and obligations that allow access, it is equally essential to encourage the responsibility of IP holders to promote access rather than through the stick of compulsory licences, at least in the case of patent law. Thus, the pressing question is how we embed responsibility in the IP system so that it allows IP holders to act responsibly. From a normative point of view, one way to embed responsibility is by conceptualizing a duty of self-moderation.⁶⁵ In the words of Li, “[a] duty of self-moderation of IP rights would be instrumental for future development in stakeholder interactions, mutual support, and transformation”.⁶⁶ She refers to a duty of self-moderation as the first step of the balancing mechanism before exploring external forces to achieve a fair and equitable balance.⁶⁷ Indeed, a duty of self-moderation arises when an imbalance is created by IP protection vis-à-vis the public interest. In that case, the IP holder should self-moderate to facilitate access. For example, by a willingness to participate in patent and technology access pools, offering reasonable licensing, setting lower prices for drugs, and so on.

During the pandemic, to ensure equitable access to vaccines, the World Health Organisation (WHO) initiated COVID-19 Vaccine Global Access (COVAX), a collaboration led by the WHO between the Global Alliance for Vaccines and Immunizations (GAVI) and the Coalition for Epidemic Preparedness Innovations (CEPI).⁶⁸ This multi-stakeholder collaboration offered a platform for the voluntary sharing of licensing agreements; however, the system relied heavily on pharmaceutical companies to offer them. To this end, not all pharmaceutical companies agreed to supply and engage with COVAX.⁶⁹ One reason might have been the lack of consultation with industry representatives during the design of the public alliance.⁷⁰ The advanced purchase of vaccines by developed countries to supply at the domestic level had a further negative impact on COVID supplies and the effective use of COVAX.⁷¹ Therefore, the important lesson learned from this pandemic is that:

many initiatives driving voluntary licensing of health-related technologies are not able to respond to the most burning problem: that is, how to organise funding or licensing for the poorest societies, how to take care of technology and knowledge transfer, and how to facilitate the absorptive capacity and capabilities of the receiving parties.⁷²

Indeed, empowering developing countries with access to technology and know-how together with the capacity to do research and development that results in the ability to manufacture locally is essential. The COVID-19 pandemic was an exceptional phase in international IP that has allowed us to revisit and debate the incentive rationale for the IP system, particularly the patent system. As pointed out earlier, scholars have argued against the incentive/reward theory in times of crisis.⁷³ The critical question is whether we should develop a system that differentiates between “regular innovation” and “social innovation”. The concept of social innovation is based on social welfare. In other words, impact and public welfare are important characteristics of social innovation.⁷⁴ Therefore, the main characteristic that distinguishes social innovations from other commercial ventures is their motivation to enhance public welfare rather than to maximize financial return.⁷⁵ To put it simply, regular innovations are those that would be covered within the existing IP system which offers monopolistic rights that act as an incentive to recoup investment. Social innovations, on the other hand, will be regulated through special norms that do not have the levy of monopoly and this will result in equitable access to everyone. In other words, states will either buy out those innovations or offer prizes as an incentive to support innovators. For many years, there has been discussion on a centralized prize system as an incentive for investment in research and development for new medicines. This, it is thought, will eliminate the exclusive rights over new medicines covered by patents, thus promoting access and offering incentives to innovate together.⁷⁶

While hypothesizing the possibilities for states regulating regular and social innovation differently, one cannot ignore the minimum obligations that the TRIPS Agreement imposes on countries. Article 27 of the TRIPS Agreement states that a “patent shall be available for any inventions, whether products or processes, in all fields of technology”.⁷⁷ The plain reading of the provision obliges states not to discriminate between inventions. However, WTO members can exclude inventions from patentability to “protect ordre public or morality, including to protect human, animal or plant life or health”.⁷⁸ Therefore, the possibilities of excluding social innovation that improves the lives of humans could be excluded from the patent system, and other forms of incentives, such as a prize system, could be offered.⁷⁹ Of course, this is not straightforward. However, the provisions of TRIPS are not read in isolation, and academic curiosity could be advanced along these lines as the global pandemic has offered a window of opportunity to think beyond normative claims and develop an approach to IP that promotes fair and just IP.

4.2 Sustainability in IP as a Responsibility

The role of IP in achieving the United Nations Sustainable Development Goals has been discussed widely.⁸⁰ However, the emerging discussion around IP and sustainability provides new insights into the debate on IP and development. Sustainability refers to all policies that aim at achieving sustainable development goals.⁸¹ That said, sustainability is defined through interconnected pillars that include environmental, economic, and social issues. The term “sustainability” referred to in this opinion must be read in the broadest sense to include issues related to the environment, climate change, and sustainable development. Given that IP incentivizes innovation, it naturally becomes a key engine for SDGs.

To this end, many countries have initiated green IP policies in their national systems and have collaborated with international institutions. In the past, the European Patent Office (EPO) has engaged with the United Nations Environment Programme (UNEP) and the International Centre for Trade and Sustainable Development (ICTSD) on patents and clean-energy technologies. As a result of this engagement, a new classification scheme for clean-energy technologies was added to the EU patent system.⁸² To tackle climate change and to encourage investment in sustainable technologies, in 2018 the EPO developed the Y02 patent classification to cover technologies for mitigation and adaption against climate change.⁸³ The idea behind the classification is also to provide patent information to the public so that new collaboration on green technology or following-on innovation based on patent information will lead to a green revolution. This is just one example. IP offices in other countries have also given priority to green technologies in patent filing to speed up the application process.⁸⁴

Both developed and developing countries should use IP as a policy tool in responding to the climate change crisis by facilitating climate change mitigation technologies⁸⁵ and broadly addressing other relevant issues of sustainability – such as the right to repair. The right to repair is a global social movement that stresses the importance of consumers’ freedom to repair their products.⁸⁶ IP laws promote exclusivity; therefore, manufacturers exercising monopolistic rights control the repair market by making it hard for an independent repairer to access repair parts. Therefore, the national system and courts should interpret IP rights that promote repair and recycling.

The right to repair comes into conflict with the protection of patents, trademarks, and copyrights. In the case of patents, while engaging in repair activities, the possibility of infringement is real. The relationship between the right to repair and the exhaustion doctrine comes into conflict. Therefore, it is important to make a distinction between repair and reconstruction. That is, in exercising repair work, a new construction of a patented invention cannot be constituted as repair work.⁸⁷ In other words, alternation of patented work is not possible. However, in some cases there might be a need for extensive repair, which exposes a great risk of indirect patent infringement. The point here is that under the exhaustion doctrine, a consumer can use a product once it is introduced by the IP owner; therefore, the repair is possible within the “normal life span of products”.⁸⁸ The question is how the court assesses the “normal life span of products”. Should it, for example, be assessed based on whether the product has fulfilled its function? In that case, how do we evaluate whether the product fulfilled its function? The challenge of evaluating life span is aptly highlighted by a scholar:

[t]he normal lifespan of a product has been assessed on the basis of “common understanding in society”, but not without criticism. The concept of a normal lifespan under a common understanding in society can lead to imbalanced results since the way the public perceive a product’s lifespan very much depends on the patent holder’s guidance. In addition, a normal lifespan does not necessarily reflect the core interests that are aimed to be protected by IPRs.⁸⁹

Similar concern was also raised in the field of trademarks as activities under the right to repair may risk changes in the condition of goods that were introduced in the market, which is viewed as compromising the origin function of trademark protection.⁹⁰

All said, IP and the right to repair share a common justification that is utilitarian. Both aim for the greatest balance of good over harm, and the focus is on maximum benefits for the greatest number of people. Therefore, the right to repair serves the public interest in knowledge production and gives the consumer freedom to make choices as well as to shape and promote sustainable behaviour. Therefore, IP owners have a duty not to interfere with consumers’ entitlement to repair.⁹¹ The IP system implicitly acknowledges the duty of right holders but often they are perceived as duties of states in balancing rights towards IP holders vs the states’ obligations towards the public interest. However, states have not been given a free hand in regulating the public interest under TRIPS. The burden on states to strike a balance between economic rights and public interest measures to a large extent constrains the purpose of public interest policy. Although IP is essential in building a sustainable future, the challenge is how we encourage multinational companies to use IP for sustainability. Some scholars have developed a responsible IP strategy as part of an organizational vision to embed IP in developing sustainability-oriented innovations.⁹² A responsible IP strategy can be viewed as:

an IP strategy that deliberately aligns with the organisation’s sustainability mission; is inclusive (in terms of IP sharing) of sustainability promoting stakeholders; and spans the boundary to enable knowledge co-creation, such as for common purpose technologies. Such IP strategy considers the different impact dimensions (e.g., social, environmental, and economic implications) and societal expectations (e.g., in its value definition) to flexibly evolve over time to best support long term sustainability transitions.⁹³

The idea of building an IP strategy based on inclusivity with a theory of responsible research and innovations emphasizing collective care of the future is novel. However, the challenge is in forming a consensus to align an IP responsibility strategy in organizational missions and in shaping the behaviour of IP holders for sustainability. This behaviour can be shaped through policy instruments or collective market (consumer-driven) forces. To this end, the EU’s 2019 Eco-Design Repairability requirement allowed certain manufacturers to provide access to parts, manuals, and information for a certain product; however, this does not address IP.

Therefore, there is increasingly demand for the Right to Repair Act to address IP hurdles in promoting the accessibility of repair products. In 2020, the Australian Productivity Commission (APC) broadly identified how copyright protection via technological protection measures could significantly become a barrier to accessing repair information.⁹⁴ Therefore, the Commission has recommended introducing a new “use” exception that permits the reproduction and sharing of repair information in special circumstances.⁹⁵ Although the right to repair is not an exception, the possibilities of reading an existing fair use exception under copyright to address the right to repair seems more feasible. For example, the InfoSoc Directive of the EU acknowledges repair and excludes “use in connection with the demonstration or repair of equipment” from the scope of protection.⁹⁶ Therefore, reading such a provision broadly is likely to address the right to repair movement. Here, the role of courts becomes important in expanding the scope of an existing legal provision to ensure IP does not become a barrier to repair information. In the recent case of Huseby v. Apple,⁹⁷ the Norwegian Supreme Court ruled concerning the use of repair materials containing logos inside the mobile phone that are not visible to the consumer per se and that are irrelevant to the repairer are found to be a violation of the Apple trademark.⁹⁸ This further informs the need for the development of a specific right to repair exception. In some jurisdictions, such as the U.S., the consumer has been influential in pushing agricultural companies to make repair products available in an easy and timely fashion.⁹⁹ Thus, developing a legal framework to address IP barriers to the right to repair is a policy question, but such initiatives will encourage sustainable consumption.¹⁰⁰

4.3 Empowering Least Developed Countries as a Responsibility

Since the commencement of the TRIPS Agreement, the landscape of IP has changed.¹⁰¹ The rise of artificial intelligence and the impact of digitization on trade has been revolutionary. Many developing countries are building a stronger digital infrastructure and are regulating a digital agenda to ensure first-mover advantage.¹⁰² The developed world continues to use IP to maximize wealth creation, whereas the then TRIPS opponents but now major emerging national economies of Brazil, Russia, India, China, and South Africa (BRICS) have now reached a level of exporting IP rights globally and a few of them are increasingly parties to TRIPS-plus agreements in the form of trade and investment agreements which they had viewed as threats to international IP. This development further increases the gap between least developed countries (LDCs) and developing and developed countries. In the context of the Global North and South debate on international IP, developing countries that were a voice for LDCs during the TRIPS Agreement¹⁰³ have now also become exporters of IP, so the question is who owns responsibility towards LDCs? One way to support LDCs is through continuous technical support. For many years, international organizations such as the World Intellectual Property Organization (WIPO) have been providing technical support to developing countries and LDCs. However, they have also received criticism for further fragmenting the IP system in some African countries because technical assistance has been used as a tool to expand IP norms.¹⁰⁴

This is not to criticize the role that WIPO has played in assisting developing countries but to emphasize the urgent need to reflect upon how technical assistance is provided, and that there is perhaps a need for responsibility-oriented technical assistance in IP policymaking backed by countries’ social and economic needs. The critical question, which has been little explored, is how can LDCs minimize the increasing gap between them and developing and developed countries? In the 1970s, developing countries adopted a soft law approach as a strategy to support the New International Economic Order (NIEO), which aimed to correct the economic imbalance between developed and developing countries but did not achieve as much as it thought it would when the movement started.¹⁰⁵ But the movement did put developing countries’ agendas at centre stage. In this regard, the question is raised whether LDCs should use soft norm strategies through a declaration in international IP institutions to ensure that the developing and developed world is responsible for empowering LDCs in order to create a sound and viable technological base? However, Drahos reminds us that the aspirations of the NIEO movement did not bring about a proper sharing of resources and technology because of the TRIPS Agreement.¹⁰⁶ In his view, “soft law strategies are only likely to have limited success in the intellectual property arena because of the presence of hard law [TRIPS]. Soft norm strategies are vital to the building of a coalition against the extension of the IP paradigm”.¹⁰⁷ Nonetheless, it becomes relevant to the question of where LDCs are situated in the international IP debate with the changing nature of innovation.

5 Conclusion

This opinion examined emerging issues in international IP through the lens of responsibility. The COVID-19 pandemic has provided an opportunity to reshape the debate not only from a normative point of view but also from how we use different frameworks to examine contemporary issues. Although the opinion briefly touched upon sustainability, access, and technical support, there are many issues, such as regulating the automation and IP interface, that should be read through the lens of responsibility. The approach in this opinion is focused on developing an argument for inclusive and responsible IP in both a normative and pragmatic sense. The normative construction of responsible IP is by framing arguments within the IP system through treaties that allow the embedding argument of responsibility while addressing the balancing of rights and obligations. The concern is how we encourage the state to endorse responsibility in IP. It may be possible to develop a “declaration” where the state and its agencies commit themselves to promulgating IP through a responsible framework, but a “declaration” has no legal character. In other words, the declaration is not a legally binding instrument. It can, however, guide states and actors to shape and mould the reading of IP that promotes equity and societal goals. Overall, looking at contemporary IP issues through the lens of responsibility allows us to develop a framework for asking questions and raising concerns that would create a responsible IP system.