TWN Info Service on Intellectual Property Issues (Dec09/02)
8 December 2009
Third World Network

Rushing through the Development Agenda?
Published in  SUNS #6824 dated 30 November 2009

Geneva, 26 Nov (Sangeeta Shashikant) -- The Development Agenda (DA) of the World Intellectual Property Organization (WIPO), which was launched in 2004 and aimed at ensuring that WIPO's activities and intellectual property discussions are "development-oriented", appears to have been reduced to a rushing through of the adoption of "projects" prepared by the WIPO Secretariat.

The week-long fourth session of WIPO's Development and IP Committee (CDIP) held from 16-20 November saw the adoption of three projects that were first discussed in the third CDIP meeting (April 2009), as well as two new projects.

There also appeared to be an attempt to rush through the adoption of another new project on technology transfer, until such attempt was met with resistance from a group of "like-minded" developing countries.

[The three projects discussed at the third session refer to projects on IP and Competition Policy (CDIP/4/4) for DA recommendations No. 7, 23 and 32; IP, Information and Communication Technologies; the Digital Divide and Access to Knowledge (CDIP/4/5) for DA recommendations No. 19, 24 and 27; IP and Public Domain (CDIP/4/3) for DA recommendations No. 16 and 20. The two new projects refer to the project on "Developing Tools for Access to Patent Information" (CDIP/4/6) for DA recommendations No. 19, 30 and 31, and the project on "Enhancement of WIPO's Results-Based Management (RBM) Framework to Support the Monitoring and Evaluation of Development Activities" (CDIP/4/8) for DA recommendations No. 33, 38 and 41.]

The meeting also discussed three proposals by Japan and Korea contained in document CDIP/4/12 and reviewed the project documents prepared by the Secretariat for the implementation of DA recommendations No. 9 and 10 (CDIP/3/INF/2); the progress report on the implementation of DA recommendations No. 2, 5, 8, 9 and 10 (CDIP/4/2); and the progress report on DA recommendations for immediate implementation (CDIP/3/5).

The Group of Friends of Development (a group of 14 countries), which began the DA process that led to the adoption of 45 recommendations, noted in their initial paper on the DA (IIM/1/4) that "WIPO has concentrated its efforts in the diffusion of standardized approaches to IP policies that assume, from an uncritical standpoint, that development follows suit as intellectual property rights protection is strengthened".

The Group added that "Current worldwide debate questioning the appropriateness of such an approach has not been reflected in WIPO's work. Rather, discussions in WIPO have overlooked the importance of a systematic assessment of the implications of increased and a standardised IPR protection in terms of access to and diffusion of science, technology and related knowledge and know-how, especially for LDCs and developing countries".

The proponents of the Development Agenda saw a key rationale of the DA as being "to promote a deeper reflection on the development implications of current and new approaches to different IP policy choices and international norm-setting, as well as a more accurate and pervasive discussion on the consequences of their adoption by countries at different stages of social, economic, and technological development".

However, in the week-long CDIP session, many developing-country delegations and observers appeared to sense urgency on the part of the Vice-Chair, Mr. Mohamed Abderraouf Bdoui, the Secretariat and some countries to rush through the agenda items, including the adoption of the projects prepared by the Secretariat.

(In a statement, Gwen Hinze from Washington-based Electronic Frontier Foundation noted that "mainstreaming the development dimension involves more than completion of this set of projects". She added: "WIPO's implementation of the Development Agenda is being closely watched by academics and civil society around the world. They understand that it is intended to reorient the Secretariat's norm-setting and technical assistance work and create lasting institutional reform in the areas of accountability and transparency."

(Hinze also expressed concern that many of the proposed activities in the thematic projects appear to be a continuation of existing Secretariat activities repackaged as DA activities. "We do not believe that merely re-characterizing the status quo as being 'development-oriented' will deliver the results sought and expected by stakeholders," she added.)

The "Thematic Project" approach was pushed forward by the Secretariat at the third session of the CDIP as the method for implementing the DA recommendations, facilitated by the Chair, Ambassador Trevor Clarke of Barbados, despite concerns raised by several developing countries that such an approach would undermine the implementation of the DA; result in the implementation being more Secretariat-driven rather than member-driven; result in the project being seen as an end in itself; and that the project may not reflect the objectives and issues intended by the DA recommendations.

Many of the concerns over the Thematic Project approach emerged again when attempts were made to rush through the adoption of a project "Intellectual Property and Technology Transfer: Common Challenges - Building Solutions" (CDIP/4/7) for DA recommendations No, 19, 25, 26 and 29, despite comments by the "Like-Minded Group" (LMG) of developing countries, led by Egypt.

The proposed project consists of five components: a high-level expert forum; undertaking of studies (although the nature of the studies is largely vague); web-based forum; creating a platform for technology transfer; and holding of five regional meetings related to the platform.

Egypt, with the support of the LMG, made several substantive and specific comments on the project document, including providing an understanding of what is meant by "technology transfer" (TT). It pointed out that TT should include market mechanisms such as commercial transactions in trade, Foreign Direct Investment, licensing and joint R&D (research and development) arrangements, as well as legitimate non-market channels such as imitation through product inspection, reverse engineering, software de-compilation, and simple trial and error.

Egypt added that in considering the issue of TT, countries should be guided by international parameters on this issue, namely, Article 7 of the TRIPS Agreement and Article 1 of the WIPO-UN Agreement.

[Article 7 of the TRIPS Agreement states: "The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations".

[Article 1 of the WIPO-UN Agreement states: "The United Nations recognizes the World Intellectual Property Organization... as a specialized agency and as being responsible for taking appropriate action in accordance with its basic instrument, treaties and agreements administered by it, inter alia, for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development..."]

Egypt also pointed to three sets of issues that needed to be considered in TT: (i) international standards of IP pertaining to TT; (ii) TT supportive IP-related policies by industrialized countries; and (iii) multilateral supportive measures. It also elaborated on each of these points.

It further said that the LMG would be presenting written comments on the project.
The LMG's comments however met with resistance from several countries, including Group B (composed of developed countries), which were more keen to simply approve the project prepared by the Secretariat.

The Chair floated the suggestion that project document CDIP/4/7 be approved with the LMG's comments treated as a separate document. However, resistance from the like-minded countries on the suggested approach resulted in a short break for informal discussions.

Following these discussions, it was agreed that the LMG would submit a document containing the comments on the implementation of the DA recommendations by 15 December 2009, and that other member states would be invited to respond to the document until 31 January 2010. The Secretariat would then prepare a non-paper for discussion at the fifth CDIP session. The LMG's non-paper would also be transmitted to the fifth CDIP session.

Following this agreement, Egypt recalled the extensive discussion held on the disadvantages of the "Thematic Project" approach adopted, and reiterated the three golden rules that underpins agreement on the thematic approach, i. e. that: (i) each recommendation would be discussed first in order to agree on the activities for implementation; (ii) recommendations that dealt with similar or identical activities would be brought under one theme, where possible; and (iii) implementation would be structured in the form of projects and other activities, as appropriate, with the understanding that additional activities may be proposed.

Egypt also suggested that the golden rules be "projected" (presumably, on the screen) throughout the fifth CDIP session.

Another apparent rushed project was on "Enhancement of WIPO's Results-Based Management (RBM) Framework to Support the Monitoring and Evaluation of Development Activities" (CDIP/4/8), discussed for the first time during the fourth CDIP session. This project consists of two components - the first on enhancement of WIPO's existing RBM framework; the second, on the review of WIPO's technical assistance (TA) activities, wherein the project proposed contracting two experts for that purpose.

Zimbabwe said it saw the RBM exercise as a "self-evaluation" exercise and noted that the objective section of the project mentioned "independent" evaluation. It also questioned whether having two experts for the review of TA was adequate. It stressed the need for consultations to be held with relevant organizations including civil society groups to obtain more inputs into the review of technical assistance and that the selection of experts should be in consultation with member states.

Brazil also reiterated that two experts for the review of TA would not be sufficient, and stressed the need to have a multi-disciplinary group of experts to report to the CDIP. Pakistan noted that the RBM project should not prejudice the coordination mechanism.
Several delegations, including Egypt, raised the issue of too much focus in the project on the DA and national IP and innovation strategies. They proposed the setting up of an independent commission to conduct the review of WIPO's technical assistance activities. However, several Group B members objected to the idea of an independent commission for the review of TA.

The Secretariat acknowledged that the RBM project was a self-evaluation project, and indicated that it would remedy the objectives. It also noted the comments made that the project was too focused on DA and national IP and innovation strategies. It added that the number of experts would depend on the terms of reference for the review of TA.

This prompted India to respond that determining the number of experts in advance of the Terms of Reference, is putting the cart before the horse.

Some issues were raised with regards to the title of the project: "Project on Enhancement of WIPO's Results-Based Management (RBM) Framework to Support the Monitoring and Evaluation of Development Activities". Egypt proposed substituting "Development Activities" with "WIPO Activities". As an alternative drawing from DA recommendation No. 38, Egypt also proposed "Assessment of WIPO's Activities on Development". Brazil proposed another title, the "Development Dimension of RBM".

In order to adopt the project, the Chair of the CDIP requested the Secretariat to make the necessary changes to the text and to submit a revised document by the end of the week.

[This method of work differed from previous CDIP sessions wherein comments were made on the project document, which was then revised by the Secretariat and presented at the following CDIP session.]

According to sources, towards the end of the close of the fourth CDIP session, the Secretariat presented orally the changes to the project document (that included changes to the title, removal of mention of national IP and innovation strategies, and removal of the number of experts), which was subsequently adopted.

(Several delegations and observers, speaking privately, said that the CDIP's method of work was focused on adopting projects, without providing delegations adequate opportunity to reflect on the changes made by the Secretariat.)

Several issues were also raised in relation to the project on IP and the public domain (CDIP/4/3) involving DA recommendations No. 16 and 20.

In particular, the inclusion of activities on TK (Traditional Knowledge) and TCEs (Traditional Cultural Expressions) as part of the public domain project was objected to by a number of developing countries (including Zimbabwe, Indonesia, Egypt and South Africa, amongst others) on the basis that TK and TCEs are not material in the public domain (i. e., freely available for use). As a result of the objections, activities pertaining to TK and TCEs were removed from the project document.

In the section on delivery strategy, text was inserted to indicate that the studies and surveys undertaken "should also form a basis to promote norm-setting activities related to IP that support a robust public domain in WIPO's Member States."

India proposed a stand-alone study on encroachment of IPRs on the public domain. Bolivia requested that the study on patents and public domain should also discuss the implication of patent thickets, ever-greening of patents, patent term extension, pre- and post-grant patent opposition and disclosure requirements on the public domain. However, Bolivia's request was met with resistance from the US.

Despite attempts to break the impasse, the matter remained unresolved. The fourth CDIP session saw the approval of some components of the IP and public domain project, with discussions to continue in the fifth CDIP session on certain elements of the project.
 
The fourth CDIP session also adopted the project on "Developing Tools for Access to Patent Information" (CDIP/4/6) prepared by the Secretariat.

The project contains three elements: (i) preparation of patent landscaping reports; (ii) developing an e-tutorial that is available online and published in a DVD for training on using and exploiting patent information, in particular preparing patent search reports; (iii) organizing conferences, including training courses to exchange experiences regarding the use of patent information and to develop specific skills such as preparing patent landscaping reports.

India proposed a database containing patent oppositions, the grounds for such oppositions and the outcomes of such opposition. It also proposed that the issue of patent opposition be included in e-tutorials.

It further proposed that crops fundamental to the livelihoods of developing countries such as maize, soya, cotton and rice be identified and a thorough study be done on the extent and nature of patent claims, including concentration of ownership over these crops, and implications for developing countries.

India also sought clarification as to why the DA budget was being used to implement activities ongoing in WIPO.

WIPO Director-General, Francis Gurry, said that legal status data, including opposition, is (in theory) part of the digitization of patent information, without indicating whether data on such opposition was actually available.

The Chair of the CDIP also appeared hesitant to take on board the suggestions of member states and said that members should not raise issues beyond the scope of the projects presented and should rather propose new projects in the next CDIP.

The project (on developing tools for access to patent information) was adopted following this discussion, with no reference to any revisions. (In the apparent rush to adopt yet another project, uncertainty prevails on how the suggestions of members would be dealt with by the Secretariat).

The fourth CDIP session also discussed projects submitted by Japan and Korea (CDIP/4/12). Japan's proposal pertained to "Web-based Experience Sharing on Successful Case Studies of Linking Intellectual Property and Business".

Bolivia stressed that any database on successful IP cases must also include successful cases of the use of TRIPS flexibilities, such as compulsory license, pre- and post-grant opposition etc.

It was agreed that the Japanese proposal would be implemented as part of the Organization's ongoing activities, as well as that any delegation wishing to add elements to this activity may do so during the next sessions of the CDIP.

Korea proposed a project on a "Program for Assisting Farmers and Producers in LDCs to Procure Brands for Their Products", and "Use of Patent Information in the Transfer of Appropriate Technologies". The former concerns using trademarks and fair-trade labels to promote LDC's products.

Brazil expressed concerns over Korea's proposal, saying that in Brazil, there is famous Brazilian cheese, but it could not be exported because of the problem of achieving minimum quality standards. It also expressed concern over the definition of "appropriate technology", further adding that duplication should be avoided.

Zimbabwe said that farmers already have challenges to enter European markets, and that branding should not be seen as an end in itself. Egypt requested clarity as to whether claiming trademarks will solve developmental problems, and stressed that trademarks and fair-trade are separate issues. It also said that Korea's proposal on appropriate technologies should be incorporated as a new project, pointing out that transfer of technology goes beyond patent information.

With regard to the Korean proposal, it seems to have been agreed that the "Secretariat would prepare project documents based upon the two (Korean) proposals and comments made by a number of delegations and present them to the fifth session of the CDIP. In the meanwhile, the Secretariat will undertake the implementation of the first component of the two proposals, as mentioned in CDIP/4/12." +