Re-thinking the role of IP: a lecture by Dr Francis Gurry

The world’s wealth is increasingly becoming centred on intellectual capital, according to Dr Francis Gurry at his presentation at Melbourne University on Thursday 22 August 2013. Dr Gurry is the Director General of the World Intellectual Property Organisation (WIPO), and the highest-ranking Australian official in a United Nations agency. The organisers of the fifth annual Francis Gurry Lecture on Intellectual Property were privileged to have the Lecture’s namesake present on “Re-thinking the role of IP”, exploring the major economic, social and political developments affecting intellectual property.

Dr Gurry identified three ways in which intellectual property has changed, largely crediting it to globalisation:

  1. Rise of intangibles: increasingly, companies are investing more in intangible assets, such as intellectual capital and knowledge based capital, than in physical assets. This intellectual capital, or ‘innovation’, is changing the ways companies are competing in the market place. Indeed, Dr Gurry referred to the Wall Street Journal’s 2012 exposé on overuse of the word “innovation”, noting that in a search of annual and quarterly reports filed with the United States’ Securities and Exchange Commission, the word “innovation” was mentioned 33,528 times, a 64% increase on a similar search conducted five years earlier.
  2. Geopolitical shift: the centre of intellectual property is moving. China is now the second largest investor in the world with respect to Research & Development, and in 2011, became the biggest Patent office in the world.
  3. Diffusion of power: due to the internet and social media, the monopoly of access to information has been taken away from the world leaders.

The above changes have in turn made the role of intellectual property in our society change. According to Dr Gurry, innovation will be the basis of competition in the future, meaning intellectual property will have the additional function to regulate competition (for example, competition for human resources).

He added that the outcome of intellectual property decisions will increasingly have a larger impact than ever before (for example, the Google Books database now contains more than 30 million digitised books, and Google has made its intentions clear to scan all of the 130 million unique books in the world by the end of this decade). A quick look at this complex PC Mag infographic setting out smartphone competitor patent suits in the United States shows that finding equilibrium among competing interests is now harder; it is no longer just about sharing knowledge versus exclusive rights.

Further, intellectual property is now used as a way to finance activities as companies are monetising reputation and spectacles. For instance, making money from a sporting event is no longer just about the ticket sales, but about the ability to control access to the broadcast of the event.

Dr Gurry postulated that the changes above lead to three main questions that must be asked in this new environment:

  1. Entitlement: the question of who invented what first is becoming harder to answer. There is a growing tension between cooperation and competition, which will require regulation in the future. It becomes necessary to ask: how do we promote secrecy in a world of transparency?
  2. Appropriability: (which Dr
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    Gurry recognises is a made up word) considering whether intellectual property should be given protection and whether it can be given protection are two very different questions. Indeed, intellectual property is increasingly being used in order to protect the efforts behind the cost of production, particularly given the comparatively minute cost of reproduction (for example, a movie may cost millions of dollars to produce, involving a large team of people over a number of months, but once produced, the movie can be reproduced in a matter of seconds at minimal cost). The traditional view was that intellectual property rights should only be given to something new and/or distinct, but now the lines are blurred. Dr Gurry used Louboutin’s red-sole trademark as such an example, which we previously wrote about here.

  3. Access: intellectual property makes ‘access’ a saleable commodity. Indeed, we have moved from the 18th and 19th century focus on physical capital and industrialisation, to one of intellectual capital and virtualisation. This raises the issue of how to strike a balance between the pursuit of competitive advantage versus the social reaction to property rights over socially beneficial technology. For instance, no one minds millions of dollars being made overnight with respect to social media, however people become sensitive when human DNA or pharmaceuticals are involved.

Dr Gurry’s public address considered the ways in which the world of intellectual property has changed, and the way it is in turn, changing the world. The lecture was live streamed, but is not currently available online. We will let you know if it becomes available.

*29 August 2013, 3.30pm. Update: A copy of the video of the Lecture is now available online here, thanks to Melbourne Law School.