In the department, policy making is overseen by the Strategic Policy Sector.  The sector consults stakeholders, academics, and experts in order to determine how existing policies can be ameliorated or enhanced to allow the Canadian economy to adapt to changes in the marketplace.  The Copyright and International Intellectual Property Policy Directorate focuses on copyright and international IP issues.  For the Copyright team – my team – their work this past fall meant assisting the Minister and his staff with the legislation of Bill C-11 (the Copyright Modernization Act), engaging with Canadian Heritage and stakeholders who may be affected by the Bill, and following the Supreme Court of Canada copyright cases that were heard last December.

I began my placement hoping to gain as much exposure to my strongest interest – the process of IP policy analysis and policy development.  My internship was a roller coaster of experiences, to say the least.  On the one hand, working with the copyright policy team at the time Bill C-11 was tabled meant that it was an exciting phase for our team.  On the other hand, it was also a busy and unpredictable phase. My tasks alternated between responding to urgent requests from senior management within 24 hours and having lengths of time to develop policy reports on the side.

Perhaps least surprising, I learned foremost how to think like a policy maker.  Policy development is about questions and answers.  Policy makers ask the right questions to lead them to the right answers – the right answer being that policy balance that would treat different stakeholders fairly.  The Supreme Court cases concerning online music downloading, for instance, touch on more issues than statutory interpretation.  A policy maker would delve into the purpose of copyright provisions and ask whether online music services ought to compensate copyright owners in a context where the works are not used or altered, merely delivered.  Similarly, deciding that a cinematographic soundtrack does not include individual sound recordings included in the film could change the way film industries incorporate music into cinematographic works.  Therefore, policy work involves a close understanding of how industries might react to legal changes, and likewise, how to implement changes to steer that reaction.

My internship with Industry Canada also showed me that policy work consists of translating extensive webs of theoretical concepts into practical solutions.  In many cases, this means boiling down reams of legal details into high-level, essential points to convey to senior management.  What I learned is that these skills are not merely germane to policy development but to almost all areas outside of law.  The law is saturated with details and intricacies which may be important to lawyers but not to those outside our profession.  Learning to glean the central issues is an important way to ensure that the legal profession is not disengaged from the “outside world.”

Alysia Lau is a JD student at Osgoode Hall Law School. Here, she reports on her experience at Industry Canada, while interning there as part of the inaugural offering of the Intellectual Property Law and Technology Intensive Program (IP Intensive) at Osgoode.

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This past August, over 180 experts from 32 countries convened at the American University Washington College to discuss the growing importance of public interest in intellectual property (IP) law. When the Global Congress on Intellectual Property and the Public Interest (the “Global Congress”) drew to a close, its members released the Washington Declaration on Intellectual Property and the Public Interest (the “Declaration”), underscoring emerging public interest issues in IP and approaches to integrating them into international IP policy.

The Declaration’s recommendations are grounded in the growing concern that IP policy, though holding the potential to widely affect public interests, continues to be shaped predominantly by private ones. This is because IP policy discourse remains largely centred on the interests of rights holders, demonstrated by the European Union’s recently passed “Cliff’s law” directive that extended protection of sound recordings from 50 to 70 years. The Global Congress openly confronts this trend by exposing the ways IP rights can invasively affect public values such as freedom of expression, consumer protection, and privacy.

The Declaration emphasizes that, in moving forward, IP policy must incorporate public interest concerns by increasing transparency in the policy-shaping process, ensuring consultation with a range of stakeholders, and strengthening limitations and exceptions to IP rights. Some notable recommendations in the Declaration include:

• Supporting the use of open educational resources through government procurement policies for textbooks and other educational materials;
• Developing binding international agreements providing for mandatory minimum limitations and exceptions;
• Creating appropriate limits on the use of unfair contracts or technological protection measures that override limitations and exceptions;
• Ensuring that legal penalties, processes, and remedies are reasonable and proportional to the acts of infringement they target;
• Limiting the duties, rights, or abilities of Internet service providers to monitor or control the communications of their users;
• Ending patents based on discovery rather than invention (including patents on human DNA sequences and disease associations) and creating a more rigorous determination of inventiveness;
• Ensuring that inventions that result from publicly funded research are available for public use;
• Increasing public oversight and accountability of collective rights management organizations; and
• Requiring that current proposals for global copyright and patent reform fully integrate development concerns.

What the Declaration markedly reflects is a growing shift in view which recognizes that innovation and creativity are not merely nurtured by strong IP rights but by the cultural environment created by the public. Therefore, although IP rights are property rights in the sense that they are controlled by the rights holder, contemporary discourse must progressively consider the rights of the public at large to access and use that “property.” The Supreme Court of Canada has, for almost a decade since Théberge v. Galérie d’Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, recognized that IP law ought to establish a balance between “the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” IP law and policy – and Canadian IP policy in particular – should be at the forefront of genuinely reflecting that balance.[1]

Having conceptually established the necessity of this balance, the important question the Declaration seeks to address is: how does the concept of promoting the public interest in IP take shape in practice? It is easy to immediately launch into debate over how the implementation of the Declaration will effectively uphold user rights or encroach on the interests of rights holders.  However, perhaps the most important take-away from this discussion – as summarized by the Global Congress at the end of the Declaration – is the need to channel more resources and greater efforts into studying the impact of IP policy. The greatest weakness of the debate is not the absence of strong theoretical arguments but that of strong evidence to point the debate in one direction over the other. Although most IP-focused research is conducted and funded by industry, these studies often fail to adequately document and publish details on their assumptions, methods, and data.[2]  In addition, almost no research has examined the economic value generated by limitations on or exceptions to IP protection.[3]

As was vocally conveyed by the Global Congress, beyond conceptual debates shaping IP policy, it is time for policy-makers to begin moving towards a form of evidence-based policy development.

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I spent this past summer interning with the (UNDP) in Jakarta, Indonesia. Preparing to take part in the new 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 and the are most relevant. Then there’s the , 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 , 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 (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 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 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!

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