TWN Info Service on Health Issues (Oct15/06)
9 October 2015
Third World Network

WIPO: Developing countries stress balanced approach to intellectual property

Geneva, 9 October (Mirza Alas) – Developing countries stressed the need for the World Intellectual Property Organization (WIPO) to have a balanced approach to intellectual property during their general statements at the 55th Assemblies of the organization’s Member States.

The 55th Assemblies are taking place at the WIPO headquarters in Geneva from on 5-14 October.  For the first two days Member States were given three minutes’ opportunity to make a general statement.  Observers were given two minutes to do so.

Developing countries emphasized the importance of the Development Agenda, the need to renew the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), the importance to strengthen the normative aspects of WIPO and to do further work on limitations and exceptions for educational, teaching and research institutions and persons with other disabilities, and limitations and exceptions for libraries and archives.

Developed countries showed a clear division regarding the Lisbon treaty and its financing situation.

The United States is demanding that the Lisbon Agreement on Appellations of Origin and their International Registration should not be financed from the surplus resources of the Patent Cooperation Treaty and the Madrid agreement on trademarks, which constitutes approximately 70% of WIPO’s revenue.

According to the U.S. the Lisbon treaty secretariat should be self-sustaining, and this unusual demand is the aftermath of the recently concluded Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications that was adopted on 20 May 2015.  The Lisbon treaty currently has 28 members and 11 of them are European states. The Geneva Act modifies the treaty to include geographical indications. Non-Lisbon treaty members including the U.S. were able to attend the negotiations but did not have full participation.

Therefore many of the European countries showed support for the Lisbon treaty and the current proposed budget that has unitary fund allocation and where the revenue is shared among the different parts of WIPO.  

Another contentious topic is the future of the IGC with the U.S. stating that the committee’s mandate should not be renewed.  Consultations are currently taking place about the different proposals for the IGC.

Below are highlights of some of the statements of country groupings and individual countries.

Brazil on behalf of the Group of Latin American and Caribbean countries (GRULAC) stressed the priority and urgency related to the normative agenda and administrative and structural issues of WIPO. The Group stated their main priorities: the renewal of the mandate of the IGC; the approval of a work program for the Standing Committee on Copyright and Related Rights (SCCR); strengthened commitment to the works of the Committee on Development and Intellectual Property (CDIP); and a more equitable geographical representation.

The Group was concerned with a series of outstanding issues such as the approval of the program and budget 2016-2017, External Offices and discussions on the convening of a Diplomatic Conference on the Design Law Treaty.

GRULAC noted that the IGC plays a central role in the normative agenda and the Group is committed to continue working on text-based negotiations with a view of reaching an agreement on a text or texts of an international legal instrument which will ensure the effective protection of genetic resources, traditional knowledge and folklore (GRTKF).  GRULAC submitted a proposal for the renewal of the mandate for the IGC.

With respect to the SCCR, GRULAC is committed to reaching an agreement on the future work in the areas of: (l) limitations and exceptions for libraries and archives, (2) limitations and exceptions for educational institutions, teaching and research, and (3) broadcasting, with a view to adopting a balanced work plan.

GRULAC requested WIPO members to approve a work plan that includes a schedule of meetings in order to adopt an appropriate legal instrument on limitations and exceptions for libraries and archives.

On the activities of the CDIP, GRULAC stressed the need for intellectual property (IP) to truly become a tool for social, economic and cultural development of all WIPO member states. The Group emphasized the importance of the work of the independent review of the implementation of the Development Agenda to renew the Organization's efforts towards a more balanced and inclusive IP system.

India on behalf of the Asia Pacific group stressed the importance of IP as an important contributor to socio-economic growth and technological development. The objective should be to strive for optimal balance in IP taking care of the rights of innovators as well as the needs of people and the larger good of society.

India noted that it was important for the Secretariat to enhance WIPO’s development orientation in the Organization’s work. The CDIP, guided by its raison d'๊tre, i.e. mainstreaming development in all WIPO activities and making development to be an integral part of the Organization’s work, has now found its role as an important committee within the Organization, as a result of its rigorous dedication to the implementation of the 45 Development Agenda Recommendations.  All relevant bodies of WIPO should take due account of those recommendations in their activities.

India said it is necessary to contextualize IP Rights in the larger framework of development to ensure that IP regimes are tailored and customized in different countries so as to foster holistic socio-economic growth and sustainable development.

Regarding the normative agenda of the Organization, India pointed out that some progress has been made in the three texts on genetic resources (GRs), traditional knowledge (TK) and traditional cultural expressions (TCEs).  It is hoped that a degree of advancement in all texts would be reached to enable the holding of a diplomatic conference in the near future. In this respect the region will support the initiative of the facilitator Mr. Ian Goss with a view to finalize the text(s) of an international legal instrument/instruments for effective protection of GRs, TK and TCEs.

Following the adoption of Marrakesh Treaty, we also look forward to actively engaging with other members on discussions on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with other disabilities, and Limitations and exceptions for libraries and archives.  We are similarly encouraged by the progress being made on the Broadcasting Treaty, said India.

Nigeria of behalf of the African Group stressed the importance of text-based negotiation in the IGC with a view to a legally binding instrument and noted the proposal of the African Group to make the IGC into a Standing Committee. Nigeria also emphasized the need to facilitate the use of IP for development and in the particular case of the Standing Committee on Patents this needs to become more responsive to the needs of developing countries, in particular LDCs, and the Group stressed the need for WIPO to engage in technology transfer.

China noted that it had received over 6000 patent applications and that has kept increasing year by year. It noted the importance to make the IP system more balance and reciprocal, and also the need to improve and extend WIPO systems and the importance to provide full attention for developing countries and to implement the development agenda recommendations.

Ecuador endorsed the GRULAC statement and emphasized that a strategic approach was needed as well as the need to balance patents with all the rights such as health and education and the effective protection of these rights.  The IP tool allows access to technology and should satisfy rights and cultural aspects, it said.

Ecuador also noted the need for adequate protection and balance with a regime of limitations and exceptions and how tools in public policy are necessary to have flexibility. It supported the work on limitations and exceptions for libraries, archives and educational intuitions as well as the protection for broadcasting and stressed the importance to renew the IGC mandate.

South Africa highlighted the importance of a balanced IP global framework that cannot be over-emphasized as, today, the world acknowledges that innovation does not automatically follow adoption and enforcement of stronger IP protection.  In 2007, when the Development Agenda was adopted, it represented a paradigm shift in rejecting the one-size-fits-all approach that was the order of the day. It was forward thinking and sought to address the imbalances in the IP system, and its subsequent impact on developing countries. However adoption means little if not followed by concrete and effective implementation of the recommendations, addressing the complexity of intellectual property and the linkages among its multiple dimensions.

South Africa said that as a specialized Agency of the United Nations, WIPO is guided by the broad development goals of the UN and has a responsibility to always take into account the differences in the level of economic, social and technological development of Member States when formulating treaties or providing policy advice to avoid the adverse implications of IP. Coupled with the recent adoption of the Sustainable Development Goals, WIPO has the added responsibility of ensuring that WIPO’s work is consistent with the broader global SDG agenda. The South African delegation subscribed to the promotion of pro-development norm setting to avoid placing additional social and economic burdens on developing countries.

South Africa pointed out that the Development Agenda addresses WIPO’s work in all its dimensions, its relevance is not limited to any specific body or committee in WIPO. All bodies and committees are relevant. It is of great concern that agreement has not yet been reached on the full implementation of the Coordination Mechanism, especially with regards to the Programme and Budget Committee and the Committee on WIPO Standards, it stressed.  

South Africa also noted that an agreement had not been reached with regard to the implementation of the recommendations of an external review of WIPO’s technical assistance in the area of cooperation for development as well as on the implementation of the third pillar of the CDIP mandate which is to discuss the interface between IP and Development. The South African delegation called for a speedy resolution to enable focused attention on substantive work.

With regards to the IGC, South Africa reaffirmed its commitment to the renewal of the mandate, pursuing text-based discussions on all three texts, GRs, TK and TCEs, with a view to establishing a legally binding instrument.

With regard to the Standing Committee on Copyright and Related Rights (SCCR), the South Africa delegation expressed its commitment to working constructively on all three issues in the committee: Broadcasting, Exceptions and Limitations for Libraries and Archives, and Exceptions and Limitations for Educational and Research Institutions.

Japan on behalf of Group B noted that the steady growth of applications and the expansion of membership cannot be achieved without proper responses to the evolving demands from the real world. WIPO is also making a significant contribution to IP information sharing and dissemination through its work relating to global IP infrastructure. Contribution to society of the invention to be patented does not consist only of the invention as such, but also of the provision of technical information related to that invention, said Japan. In this regard, global IP services and global IP infrastructure are like the two wheels of a cart and their importance cannot be overemphasized, it added.

Japan also said that for the purpose of achieving the objective of this organization as prescribed in the WIPO convention, it is important to have shared understanding of how this organization is working and how it should function. In this regard, we have to keep the unique and significant nature and character of WIPO in mind. While WIPO has to fulfill its responsibility as a member of the UN family, this has to be done in a manner that remains in line with the overarching principles under the objective of this organization, namely, promotion of protection of intellectual property. At the same time, this organization has to continue to keep its feet on the ground, in other words, in touch with the real world, which is formed by innovators, creators, users of the IP system and IP information etc. Our group strongly believes that WIPO and its member states should continue our work based upon this shared understanding, Japan said.

With regard to the IGC, Group B believes that the agreed way forward on this matter has to be reasonable and balanced, reflecting the wide divergences of views, not only on the process, but also on the fundamental points on substance. It is necessary to envisage a new framework of the discussion that could bring us closer. The group recognized the importance of the facilitation process and committed to engage constructively.

Germany said that intellectual property rights (IPRs) are essential legal, economic and cultural assets for enterprises and society as a whole. IPRs are a complex, passionately and globally discussed issue. Every single day, news stories contain a multitude of statements and discussions on these issues, and report on their development. WIPO faces the challenge of providing an adequate response to this and, furthermore, of fulfilling its mission to promote intellectual property and to protect it effectively in order to create sustainable development and wealth. One of the major as well as delicate tasks is and will be to refute the continuously uttered fear that WIPO favors certain groups, and to demonstrate repeatedly that WIPO ́s aim is to always find the optimal balance between rights holders and various segments of society, including in the context of health and the environment, stressed Germany.

Germany supported a robust and appropriate international IP framework, which balances different interests and concerns, encourages innovation, and fosters the development and transfer of technology. Stakeholders, including IP offices, will benefit from a simpler and more harmonized international framework, including substantive provisions, inter alia, on copyright law, patent law and trademark law. WIPO, as the guardian of global legislation and harmonized practices, should keep such harmonization of legal concepts on its agenda, it said.

Germany committed to improving the protection of broadcasting organizations by reaching a consensus on an international treaty with a scope of application that considers modern technologies and the need to update the protection offered and address present and emerging technological issues in this area. It expressed willingness to support the work of the SCCR in order to advance text-based work on an international treaty for the protection of broadcasting organizations.

It also expressed their will to engage in sharing national experiences regarding exceptions and limitations for certain organizations and purposes as well as for people with disabilities different from print disabilities. Although Germany was convinced that there is no need for a legally binding international instrument regarding these topics, we are very interested in other Member States’ legal concepts.

Germany congratulated the members of the Lisbon Union and the WIPO Secretariat for successfully revising the Lisbon System that will consequently be more attractive, efficient and sustainable in the future. The protection of geographical indications is a way of protecting regional traditional knowledge for both agricultural and non-agricultural products.

It recognized the importance of the work carried out by the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). Despite many years of discussion running up to the text-based negotiations which were held during the last 5 years, we take note that no agreement could be found on objectives and principles, the goal to be reached, beneficiaries, scope, definitions of key elements and many other elements in the texts under discussion. It has therefore become clear that the IGC will not succeed on the basis of text-based negotiations.

The United States noted that during the meetings of the WIPO Program and Budget Committee in July and September this year, it made clear its support for the Organization’s proposed Program and Budget for 2016-17, but we withheld our approval largely because the Lisbon Union declined to fund itself as required by its treaty. We are hopeful that the Lisbon Union will address the issue this week so that the budget can be adopted by consensus

The U.S. said that although the Lisbon Union deficit is small, it remains concerned about a larger issue that is at the very foundation of this organization – the necessary cooperation among the various Unions administered by WIPO. When one Union takes actions inconsistent with this necessary cooperation, much less with its own treaty obligations, we must object in the name of good governance, accountability and transparency for the sake of the Organization as a whole.

The U.S. emphasized that their stakeholders believed that both the Lisbon Agreement and the Geneva Act will negatively impact them as the protection for geographical indications in these agreements is trade distorting. And we are facing serious questions about why and how U.S. fees and contributions are required to subsidize the Lisbon system when it is so harmful to U.S. trade. The U.S. noted that tit was not in support of the framework under which the Lisbon System can carry a deficit and have that deficit covered by other Unions.

The U.S. objected to Patent Cooperation Treaty revenue being used to support the Lisbon system, which by its own treaty is required to be self-funding, and which recently was expanded without the broad consultations for which WIPO has long been respected. In contrast, the Madrid and Hague systems represent consensus global solutions, it said.

(The Lisbon Agreement has 28 members of which 11 are from Europe and the U.S. is not one of them; accordingly non-members had limited participation in the negotiations of the Geneva Act that expanded the Lisbon Agreement to include geographical indications regarded by many as more beneficial to the European countries.)

The U.S. also submitted a proposal relating to the IGC. Text-based negotiations, launched in 1990, have driven the members farther apart rather than closer together, and have produced unworkable texts, it said.  The U.S. proposed the establishment of an experts’ working group to find common ground on objectives and principles, in order to produce a tangible result supported by all members. Until and unless that can happen, the U.S. believed that consideration of a diplomatic conference is premature.+