The IP Commission Report on the “theft” of American IP is the gift that keeps on taking. We’ve already discussed the commission’s suggestion that infringers’ computers be loaded up with spyware and malware and the apparent “fact” that China has singlehandendly destroyed every IP-reliant industry in America.

Hidden towards the bottom of the report is (yet another) terrible proposal, guided by the heavy hand of self-interest. It plainly spells out the commission’s priorities: American IP above all else, even the health and well-being of other nations.

Recommend to Congress and the administration that U.S. funding to the World Health Organization (WHO) program budget in whole or in part be withheld until (1) the WHO’s process of certifying national regulatory agencies includes attestation that IP protection is an essential part of the regulatory evaluation process, and (2) the WHO refrains from prequalifying any product until the regulating agency of jurisdiction demonstrates and certifies that it does not violate IP rights…

The U.S. government has leverage at the WHO chiefly because of its financial support, which consists of annual “means tested” contributions to the WHO’s program budget and “voluntary” contributions whose total value is about $350 million. This support from the United States can be a carrot or a stick to influence the WHO’s actions.

So, if the WHO puts health ahead of American IP holders, the US should just cut off its contributions to the organization, and indirectly, the countries it assists. One would think that the “regulatory evaluation process” would be primarily concerned with ensuring new drugs and medical technology do more good than harm, healthwise. The possibility of IP infringement probably doesn’t even cross the radar of the WHO. That job belongs to other agencies.

But the commission ties IP enforcement and worldwide health together, forcing one to rely on the other by linking US monetary contributions to protection of American IP. The WHO would now be required to make sure rights holders aren’t being cut out of a market before attempting to solve larger problems — like halting an outbreak before it becomes an epidemic.

The commission also suggests the US solicit a little help with its low-level IP extortion by asking for other affected countries (affected by IP theft — not widespread health issues) to follow its lead in chaining contributions to IP enforcement.

Multilateral coordination may also be possible. For example, the IP of Japanese-developed medicine is frequently stolen, and Japan’s current annual and voluntary contributions to the WHO total over $70 million.

With enough support, maybe the commission can force the WHO to properly reflect its new priorities by dropping the “H” (which is of secondary concern) and replace it with “IP” (job #1). WIPO!

The commission “recommends” this course of action but can’t “endorse” it quite yet, possibly because it will make everyone involved look like a bunch of greedy meatbags who value their profits over the health of the developing world. (Heavily paraphrased — here’s the original.)

The Commission believes this recommendation has strong promise but is not ready to endorse it. To be acted upon, this recommendation requires careful assessment of the likely impacts and the potential for unintended consequences. It will be essential to ensure that the poorest and most vulnerable across the world continue to have access to life-saving, high-quality health interventions, now and in the future. In fact, IP protections are vital to that outcome, because they preserve incentives for innovation and foster predictable markets for manufacturers.

In other words, we like it but we can’t endorse until we can mitigate the unintended consequences (one of which was listed earlier). The poorest and most vulnerable across the world should still have access to lifesaving medicine and technology, pending licensing approval and WHO due diligence. (The last sentence in the Commission’s bet-hedging paragraph is simply wishful thinking — the kind that gets copyright extended and bad legislation crafted.)

Threatening to yank WHO funding screws up the organization’s priorities. The funding should be contingent on the WHO providing the best possible health assistance it can worldwide. Being an IP cop for US interests (and other countries, should they choose to go this regrettable route) shouldn’t even be part of the equation.

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