TWN Info Service on Intellectual Property Issues (Mar08/01)
06 March 2008
Third World Network

Discussion on defining a work programme for implementation of the 45 adopted recommendations on the WIPO Development Agenda began on Monday in the newly-established WIPO Committee on Development and Intellectual Property (CDIP). The CDIP meeting continues until the end of the week.

The CDIP was established by the last WIPO General Assembly with the mandate to develop a work programme for implementation of the 45 adopted recommendations; monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose it shall coordinate with relevant WIPO bodies; discuss IP and development-related issues as agreed by the Committee, as well as those decided by the General Assembly.

Please find below a news report on discussions that took place at the start of the WIPO Development Agenda. The meeting has since continued in an informal mode, with reporting only allowed on the outcomes of the meeting.

Best Regards
Sangeeta Shashikant
Third World Network
email: ssangeeta@myjaring.net

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WIPO: Discussion begins on implementing the Development Agenda
Published in SUNS #6428 dated5 March 2008

Geneva, 4 Mar (Riaz K. Tayob) -- Discussion on defining a work programme for implementation of the 45 adopted recommendations on the WIPO Development Agenda began on Monday in the newly-established WIPO Committee on Development and Intellectual Property (CDIP).

Much of the first day of the CDIP was spent discussing procedural issues such as the adoption of the rules of procedure of the committee and how discussions on the work programme should be conducted. Member States, intergovernmental and non-governmental organisations also made comments on the work of the CDIP.

Many general statements were also made by developing countries which proposed ways of improving WIPO's treaty-making and technical assistance activities. Several NGOs made specific observations about the nature of WIPO's technical assistance work, and proposed how WIPO should expand the public-interest and development aspects of IP, such as improving access to knowledge and expanding the public domain.

The CDIP was established by the last WIPO General Assembly with the mandate to develop a work programme for implementation of the adopted recommendations; monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose it shall coordinate with relevant WIPO bodies; discuss IP and development-related issues as agreed by the Committee, as well as those decided by the General Assembly.

A point of contention at the start of the meeting was the method by which the 45 recommendations should be discussed.

The 45 recommendations on the WIPO Development Agenda are in 6 clusters: Cluster A - Technical Assistance and Capacity Building; Cluster B - norm setting, flexibilities, public policy and public domain; Cluster C - Technology transfer, information and communication technology and access to knowledge; Cluster D - Assessments, Evaluation and Impact Studies; Cluster E - Institutional matters including mandate and governance; and Cluster F - Other Issues.

Before the committee is an initial working document prepared by the Chair of the previous related Committee (Provisional Committee on Proposals Related to a WIPO Development Agenda - PCDA - that discussed the Development Agenda and adopted the 45 recommendations), Ambassador Trevor Clarke of Barbados.

The first part contains a "Preliminary Implementation Report with respect to the 19 proposals". It has two columns, one on the recommendations, another on Secretariat's information on activities implemented/planned in respect of the recommendations.

According to a note, these proposals were identified (out of the 45 proposals) on the basis that WIPO is already implementing related activities, it was not necessary for a detailed work programme before implementing the proposal, and it does not require engagement of additional human and financial resources. The 19 proposals pertain to clusters A, B, and D.

The second part contains the rest of the proposals and is titled "Initial Working Document regarding the implementation of 26 agreed proposals". It contains 3 main columns - on the recommendations, Secretariat's suggestions on possible activities, and for additional human and financial resources required.

Suggestions on activities for implementation of the recommendations have also been made by Central European and Baltic States, the Group of Friends of Development and the Republic of Korea. These are compiled in another document.

On the first day of the meeting (3 March), Clarke, who was also elected chair of CDIP, proposed that the 26 recommendations be discussed first followed by the 19 recommendations, as the former has human resource and financial implications and an early discussion would give the Secretariat time to prepare a document on these implications for the next CDIP meeting.

Many developing countries including Argentina, Brazil, and India stressed the need for CDIP to discuss and propose activities for all the 45 recommendations. Bangladesh said a holistic approach was required. Brazil said it was important not to change the nature of the decision of the General Assembly and that there was no substantive difference between the sets of recommendations and that the difference was only operational.

Discussion on procedure continued on the second day (4 March). Brazil in relation to the 19 proposals suggested to avoid extensive comments on ongoing activities and focus on proposals for the future work programme. It proposed a new column for suggestions on activities. Chile said the activities should not be limited to the Chair's initial working documents as it was just based on the Secretariat's opinion, and members could suggest changes.

Slovenia, on behalf of the European Communities, expressed concern about asking the CDIP to agree or to adopt the outcome of discussions during this session. It asked the chair to consider a different approach such as "closing the discussion" on a recommendation. The US said that activities discussed have to be sent to the Secretariat to assess human and financial implications.

The Chair concluded that what would be adopted is a "cluster by cluster approach". Within each cluster, the 19 recommendations for immediate implementation would be dealt with after discussion of the 26 recommendations. He also said that additional columns may be added to the Chair's initial working papers, and the proposals would be sent to the Secretariat to assess the human and financial requirements before the July CDIP session.

The first day also heard general statements by developing countries.

Algerian Ambassador Idriss Jazairy, for the Africa group, said the implementation phase was more important than the negotiation stage. Implementation of the recommendations should serve to improve institutional, scientific and technological capacities, transfer of technology and advance the meaning of development in international instruments.

Algeria said, firstly, member states must benefit from the preparation of an IPR strategy along the same lines as a national development plan. Second, in the area of legislation, Africa must benefit from a review and to integrate the use of flexibilities and exceptions (in IP law). Developing countries should benefit from the same flexibilities which developed countries used when at a comparable state of development. This should incorporate rules of development to make up for gaps in antitrust (mechanisms) in Africa. Third, better assistance was needed.
Algeria also added that action on innovation and transfer of technology should include support to research and development centres for marketing research and there should be a contribution to capacity in African countries for access to databases of patents and other information.

Argentina, for the Group of Friends of Development (GFOD), said the spectrum of issues was too wide to be covered in two formal meetings and that work should continue between sessions. The DA should be mainstreamed into the different WIPO bodies.

China said development was the greatest challenge facing developing countries and is a practical concern that UN agencies must address. Searching for balanced approaches and comprehensive realisation of development should be taken seriously by WIPO. Protection of innovation should also be in unison with transfer of technology and the varied condition of economies and levels of development should not be ignored.

Thailand said that IPRs and development are two sides of the same coin. Adequate IPR protection remains as essential as development and the creation of a level playing field. India said that the development agenda was beyond the 45 proposals and that the challenge was how to mainstream the development dimension in WIPO. It said that the issues require efforts and cooperation of other committees.

South Africa said that the DA is expected to significantly contribute to the reform of the global IP system; with an expectation that a balance in the IP system would emerge over time. In relation to the 19 proposals, it said Members would have to re-orientate and refocus those activities to build synergies with the view to maximise their development impact.

It said the design, delivery and evaluation of technical assistance and capacity building programmes should be premised on specific principles, including transparency and reform of technical assistance should be on an agreed framework to guide the design, delivery and evaluation of activities. A clear framework would provide an important platform against which recipient countries, donor countries, academic researchers, the media, civil society and other stakeholders would constructively critique and evaluate WIPO's activities. Enhanced transparency would lead to improved accountability in terms of efficiency in resource allocation and utilisation.

According to South Africa, the components of a new development-based framework for initiating, conducting and evaluating treaty-making and other norm-setting activities are: (1) a member-driven treaty making process taking into account different levels of development; (2) transparent and development sensitive pre-negotiations consultations; and (3) the preservation of flexibilities contained in international IP agreements.

The pre-negotiation procedures would afford an opportunity for a more robust debate to clarify the objectives, scope and content of proposed treaties and thus reduce the incidence of breakdown in treaty-making processes. It added that the exploration of IP related policies and initiatives are necessary to promote transfer of technology.
On evaluation and impact assessments, it said that WIPO would be expected to develop an annual review and evaluation mechanism to assess the development orientation of all its programmes and activities, including technical assistance and capacity building. The review and evaluation mechanism would contain specific benchmarks and indicators. WIPO's capacity to perform objective assessments of the impact of its activities on development needs to be strengthened.

Brazil said that the DA is a historic opportunity and that WIPO should contribute through a carefully crafted programme that follows the agenda's letter and spirit.

Some developed countries pointed out what in their view were the parameters of CDIP and that care should be taken on spending WIPO's resources.

The US, which has resisted change in WIPO and tried on several occasions to dilute the DA, said that the CDIP must take care to implement proposals that are consistent with the general mandate of WIPO and the specific mandate of the CDIP. The implementation of proposals should be consistent with the regular budgetary procedures and information must be provided immediately for proposals that require additional financial and human resources.

Slovenia, on behalf of the European Communities, said that the CDIP would not be able to draw hard conclusions from the discussion, as there has not been enough time to conduct consultations and there was insufficient material on which to make a decision. It said that details of human and other resources had not been submitted. It added that with the Chair's approach, only a draft work programme could be adopted.

Switzerland said that WIPO resources are not unlimited and thus project proposals should not be over-ambitious.

Several NGOs also spoke on the implementation of the DA. The Electronic Frontier Foundation (EFF) supported the promotion of norm-setting that is protective of a robust public domain, and safeguards national sovereignty in the area of exceptions and limitations.

It said WIPO should deepen analysis on public domain, produce guides for Member States on how they can protect the public domain and existing copyright exceptions and limitations against encroachment by overbroad legal protection for technological protection measures (electronic methods of protecting access to or use of, works) and conduct a survey of the different approaches to facilitate access to and use of orphaned copyrighted works.

It supported the call for discussions on how to facilitate access to knowledge and technology on the IP-related aspects of ICT (information and communication technologies) for development, and recommended convening an open forum to analyse current IP-related obstacles to technology innovation, infrastructure growth and use of ICTs.

It stressed the need for transparency in WIPO's technical assistance and norm-setting activities. It said WIPO uses a model copyright law that currently has a number of deficiencies, particularly in relation to technological protection measures; however, it noted that the model law was no longer available for review on WIPO's website.

Third World Network (TWN) said that it had found that WIPO, when providing technical assistance on IP laws, has been proposing about 8 laws on different categories of IP, patents, trademarks, unfair competition, lay-out designs and others, all bundled together in one Act. It said that WIPO was providing this advice also to LDCs, even though LDCs have the flexibility at least until 2013 before implementing the TRIPS Agreement. This kind of advice was not in line with the special needs and priorities of developing countries or LDCs.

TWN also enquired as to the kind of methodology or tools used by WIPO to identify needs and priorities of developing countries to which it provided technical assistance. TWN stressed the need for transparency, proposing that all information pertaining to WIPO's events such as workshops at national, regional and international level (including the agenda, participants list, content, and proposed outcomes) and the "templates" it used as a basis for providing legislative assistance should be made available on WIPO's website.

Knowledge Ecology International (KEI) said that WIPO's mission is not simply about expanding IP rights but now also includes access to knowledge (A2K), the implications and benefits of a rich public domain, strategies for dealing with abuses of rights, and measures to protect the public interest. It proposed that WIPO organise an open forum on A2K as well as on the control of anti-competitive practices in both the patent and copyright fields.

Electronic Information for Libraries said that seminars in the copyright field should represent the interests of all stakeholders including libraries and the public interest. Programmes should give equal weight to flexibilities such as exceptions and limitations, and the value of the public domain.

It said, for example, if an LDC deems it a priority to increase the number of trained doctors and nurses to achieve its Millennium Development Goals to reduce child mortality and to combat HIV/AIDS and malaria, it may need to boost its education and training. One strand of this policy could include ensuring that there are appropriate and adequate exceptions and limitations in national copyright law to support education and libraries. +