Strong vs. weak IPR

Demands for more stringent enforcement of IPR are coming in from all quarters, particularly the US content industries, as piracy has increasingly come to be associated with Asia Pacific economies. However, while TRIPS signatories must provide adequate enforcement of IP, it should be acknowledged that many Asia Pacific countries that have reached an admirable stage of economic and technological development have done so even with relatively weak levels of IP enforcement and through a judicious use of imitation. For example, Taiwan and Korea, which experienced massive transformations from the 1960s to the 1980s, used imitation and reverse engineering to overcome the technological divide and create a strong national capacity in ICTs. Similarly, the Indian pharmaceutical industries benefited for many years from the absence of a pharmaceutical product patent and India is at present one the most significant exporters of generic low costs drugs to many parts of the world.

In 1947, 80–90 per cent of the pharmaceutical patents in India were held by multinational companies and more than 90 per cent of these drugs were not even being produced in India. India changed its patent laws to allow only for 'process patents' and not patents for the end product itself. This essentially meant that an Indian pharmaceutical company could make an existing drug through the process of reverse engineering. During this period, Indian pharmaceutical companies were able to reproduce existing drugs rapidly and at a low cost, thereby making them competitive in both foreign and domestic markets. By 1991, Indian firms accounted for 70 per cent of the bulk drugs and 80 per cent of formulations produced in the country. In 1996, six of the top 10 firms by pharmaceutical sales were Indian firms rather than the subsidiaries of foreign multinationals. Domestic firms (Indian-owned firms based in India) produce about 350 of the 500 bulk drugs consumed in the country. There are over 250 large pharmaceutical firms and about 9,000 registered small-scale units while the Indian Drug Manufacturers' Association (IDMA) estimates about 7,000 unregistered small-scale units producing drugs. The generic drug industry has been vital in ensuring that drugs are available at an affordable price.

Thus a 'weak' IP regime may actually promote local industries and help develop self-reliance in the field of technology (Thomas 2006). As the Copy South Group argues, lower levels of copyright enforcement enable greater circulation of knowledge, culture and technology throughout the developing world, while 'stronger protection and enforcement of copyright rules may well reduce access to knowledge required by developing [countries] to support education and research, and access to copyrighted products such as software'. This in turn could have potentially negative consequences on their ability to develop their human resources and technological capacity.

Policymakers must rise to the challenge of striking a balance between copyright and the need to facilitate affordable technological transfer to enable the emergence of a sustainable indigenous technological sector. To do otherwise would mean perpetual dependence on imported technology and know-how.