An Interview with Visiting Fellow Dr Francis Gurry

In Conversation with

Dr Francis Gurry

WIPO

Alumnus Professor Sir Malcolm Evans sits down with the former Director General of the World Intellectual Property Organisation

Malcolm Evans

Malcolm Evans: Which paths have led you to significant achievements both personally and by WIPO during your time with them? Francis Gurry: As you know better than I, international cooperation is a very difficult task. To actually accomplish an agreement - whether a formal treaty, or a practical arrangement between states - is a very difficult thing to achieve, because you have such inequalities in the world.

Just as a minor example, if you look at investment in research and development, the US invests $540 billion in research and development every year, and China invests about $480 billion. Those two sums are more than the individual GDP of 160 countries. So, you have the two superpowers, - and I know I’m comparing apples and oranges - investing more in the creation of new knowledge than 160 countries have at their disposal for security, defence, health, infrastructure, and all the other public goods that we expect of the government. So, I don’t think you can exaggerate the inequalities in this world, and those in the field of technology are exacerbated by the speed of change in technology and by these enormous sums of investment.

In that context, I think about what we managed to do in terms of formal treaties. For example, we concluded a treaty for giving access for blind and visually impaired persons to published works. If you take Harry Potter, there was an exception at the national level to break copyright to make an accessible format copy of the book, for example a Braille copy, where there was no commercially available copy in in the accessible format. But, the exception being national law, it meant that a separate braille copy of Harry Potter was produced in the UK, in Canada, in the United States, in Australia and in New Zealand. Well, that’s a waste – four other books which could have been made into a Braille copy. But it happened because these exceptions were national law exceptions to the nationally applicable copyright.

What the treaty did was create an international rule that you must have such an exception, and the exceptions at the national level must be able to talk to each other. That was one of my most heart-warming experiences because by the time we got through the process of negotiation, everyone was on board. Usually in international affairs a measure of success is that everyone is equally unhappy, and this was a rare instance of everyone being equally happy!

ME: What is your view on Internet regulation, where the only thing there’s consensus on is that something has to be done, but nobody knows quite what that something is? FG: If individual national approaches are adopted, there is a great risk of a ‘splinternet’. And that is, arguably, what is developing within the sites of China and Russia, who really don’t want to be told how to govern or regulate the Internet space by others. At the same time, you have a big push for opening, but in that push you have to deal with the catastrophes of the excesses of social media in terms of misinformation and giving a voice to arguably hate-inciting views.

ME: Here’s an example of that classic problem where two extreme ends of a spectrum between them prevent the emergence of a consensus in the middle: on one side, those in the digital industry who would want to instrumentalise digital technology, and on the other, the extreme libertarians who believe it ought to be unregulated because that is the beauty of the area. Then in the middle is everybody else who suffers because of these two extremes. FG: I think you’re absolutely right, and I don’t know how we’re going to solve that one because it’s quite clear that the Internet is really the ‘Wild West’. And, if you follow that analogy, you can see that people have occupied spaces and are constructing their own communities in this space which is ‘no person’s land’. Out of that eventually comes California, of course! But that’s a very long process, and we don’t have the luxury of that time in this new frontier that we’re seeing now.

ME: We’ve always had other forms of entities which have been on the periphery in some regards, but are at least recognised as international actors because of both their influence and the unorthodox ways in which they relate to other actors within the international community. There’s doubtless a provocative article to be written about whether Microsoft or Facebook should be given a form of international personality. But, at the moment, they’re not necessarily subject to the same control and restriction and responsibilities. FG: It’s quite clear that the Googles, the Microsofts, and the Amazons of this world have a financial and economic power which translates into a political, soft persuasive power which is much greater than most of the least developed countries. Whether we like it or not, since the mid-90s, there has been this great emphasis on privatisation, which has led to a situation in which we see that there has been an enormous transfer of financial resources from states to the private sector. At the same time, since commercial activity was first authorised for the Internet in 1995, there’s been a transfer of information resources from the public sector to the private sector.

I was struck when the Charlie Hebdo incident occurred in Paris to see a photograph published in the media of Francois Hollande, then President of France, watching the events unfold on television. That’s a head of a government, of a major power, and he’s getting his information from CNN or whichever the equivalent was.

The consequence of this enormous transfer of information and financial resources from the public sector is you have to bring the private sector somehow into the formulation of the rules that are going to constitute our governance structure. But then, of course, you have the classic problem of governance: dealing with multiple conflicts of interest.

On the part of developing countries you have a great deal of resentment about this. They say, ‘We don’t have a private sector so how can we be represented within such a government structure? We don’t have companies that can compete in this sphere’. This is part of the inequality equation that is rapidly developing. Inequality is usually measured in terms of financial or economic capacity; but, these days, you also have to measure it in terms of technological, data or information capacity.

ME: In intellectual property, the struggle of ownership over technology has become key. Do you think intellectual property has become too politicised? FG: In many respects, yes. I don’t see that being changed very easily. To put it very crudely, technology is a source of economic and military power, and intellectual property controls access to the latest expressions of technology. A major factor for its politicisation is the relationship between the two major powers in the world, China and the United States. We have a situation which is very deeply concerning, because the measures of containment that the United States are imposing on China - and again I’m trying to observe rather than to make judgments - risk causing a closure in the world that is a reversal of one of the beneficial effects of globalisation over the last forty years, namely that of opening. I know globalisation is not without its difficulties, but a benefit I’m personally very much in favour of is openness; and this closure would be a massive failure, I think, of an instrument which has many problems, but which also has such extraordinary benefits to give.

ME: To what extent is it possible to change the often backwards-looking culture that besets international organisations in order to get this new dynamism that one is looking for? FG: It’s great challenge. Getting people to realise that they’re just a small cog in a massive, complex architecture of wheels - that’s the big culture change that’s needed. One of the helpful things that’s happened in the last twenty to thirty years is what they call in our world ‘open innovation’. To some extent the model of the 20th century was that each corporation had its own research and development department, and then it produced its innovations out of that. Then they realized, partly because of networking possibilities and greater international collaboration facilitated by globalization, that it’s unlikely that in one laboratory, no matter how big the company, they’re going to have all the brain power in the world. So you have to reach out and establish collaborative relations with a range of other people, including your competitors. And you create this open innovation network where the objective is to profit from the innovative work that’s going on in a great many different instances.

That’s what the UN has to do, I think. It has to realize that it’s just one player amongst many, that it’s got no special status and, let’s be frank, that nobody listens to it these days. It has to reach out and establish the collaborative relations which will bring it down off its pedestal and give it a more innovative culture.

Dr Francis Gurry is a Visiting Fellow of Regent’s Park College. From 2008 until 2020, Dr Gurry was Director General of the World Intellectual Property Organisation (WIPO), the global forum for intellectual property services, policy, information and cooperation. We were delighted to welcome Dr Gurry in October 2021 where he met with staff and students to discuss themes around intellectual property and the role of international organisations.

Professor Sir Malcolm Evans KCMG, OBE is an alumnus of Regent’s Park College (Jurisprudence, 1979), and member of the Governing Body. A legal scholar with expertise in the law of the sea and the international protection of human rights, he is Professor of Public International Law at the University of Bristol.

With grateful thanks to Kevin Fitzgerald CMG (Modern History, 1980, Greyfriars)