TWN Info Service on Intellectual Property Issues (May10/03)
7 May 2010
Third World Network

Consensus on coordination mechanism on Development Agenda, UN experts to be invited
Published in SUNS #6917 dated 4 May 2010

Geneva, 3 May (Sangeeta Shashikant) -- After countless hours of informal negotiations during a week-long meeting (26-30 April) of the WIPO Committee on Development and Intellectual Property (CDIP), agreement was finally reached on the parameters of the "Coordination Mechanisms and Monitoring, Assessing and Reporting Modalities" in respect of the implementation of the Development Agenda recommendations.

Developing countries have been calling for a robust coordination mechanism since it formed a core component of the 2007 WIPO General Assembly (GA) mandate, which requested the CDIP to "monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose, it shall coordinate with relevant WIPO bodies".

However, Group B, composed of developed countries, has been resisting this move. As a result, negotiations on the mechanism have often been marked by tense discussions along generally North-South lines.

The key elements of the agreed coordination mechanism include: the undertaking of an independent review of the implementation of the DA recommendations at the end of the 2012-2013 biennium and possibility of conducting further reviews; establishment of a standing item on CDIP on the GA agenda; instructing WIPO bodies to identify the ways in which the DA recommendations are to be mainstreamed in their work and to include in their annual report to the Assemblies a description of their contribution on DA implementation, with the GA forwarding these reports to the CDIP for discussion; to instruct the CDIP to include review of the implementation of the DA recommendations in its report to the GA; and the Director-General providing regular updates on the progress of the DA implementation.

The week-long meeting also discussed several projects on implementing the DA recommendations; the "Director General's Report on Implementation of Development Agenda" (CDIP/5/2); the "Report on WIPO's Contribution to the United Nations Millennium Development Goals (MDGs)" (CDIP/5/3); as well as the future work with regard to the next session of the CDIP.

In relation to the future work of the CDIP, India requested that Professor Sakiko Fukuda-Parr (who undertook a technical mission to review the WIPO DA from the perspective of its contribution to the realization of the right to development) be invited to present the mission report to the next CDIP session.

India also requested that the UN Special Rapporteurs on the Right to Food (Mr. Olivier de Schutter) and the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (Mr. Anand Grover) be invited to the next CDIP session to present their reports on the linkages between intellectual property (IP) and the right to food, and IP and the right to health.

[The UN Special Rapporteur on the right to food recently examined the relationship between IP and the right to food in his report titled "Seed policies and the right to food: enhancing agrobiodiversity and encouraging innovation", while the UN Special Rapporteur on the right to health, in his report to the UN Human Rights Council last year, had examined the issue of IP and public health.]

India also suggested that it would be useful to have a discussion on the terms of reference for the independent review of the implementation of the DA recommendations agreed as part of the coordination mechanism. India's suggestions were supported by other developing-country delegations.

However, Switzerland resisted India's suggestions, stating that the CDIP should concentrate on launching projects. The US objected to inviting the UN experts, saying that the suggested topics were not the subject of the current projects. It added that such topics may be appropriate for side presentations. Canada also supported the holding of side-events on the topics.

India said that in its view, the CDIP should not simply spend time approving projects, adding that the UN experts had spoken on the linkages between IP and development, the subject matter of the CDIP, and thus it would enrich the CDIP debate. It further said that it did not see any difficulty with inviting the Special Rapporteurs to present their reports, adding that it was not looking at any outcome document.

The Chair concluded the discussion by stating that he would consult with the Secretariat and Member States on the future work.

On Friday evening, Nigeria, supported by Group B, objected to the presentation of the guiding principles of the newly-formed Development Agenda Group (DAG) as an official CDIP document, with a number that indicates that it is a working document of the CDIP.

[The WIPO Secretariat had, on the request of the DAG, prepared a document numbered CDIP/5/9 and titled "Development Agenda Group Guiding Principles Paper".]

Nigeria requested that the paper be withdrawn. Group B supported Nigeria in its request, additionally proposing that the document be re-numbered as an information document.

Egypt, on behalf of the DAG, said that the document was a call for bridge-building and cooperation, and it was unexpected that this call is being met by a "hostile" attitude. It added that the matter was a serious issue, as 19 sovereign states of a UN body were being denied the right to present a document in a formal UN meeting.

Egypt pointed to precedents in existing WIPO committees where documents were presented as working documents but were never subjected to discussion. The DAG also requested clarification from the WIPO legal advisor on this issue.

The Secretariat clarified that the rules of procedure were silent about which documents could be labeled as working documents. It said that it received a request from the DAG to bring the information to the CDIP, adding that the Secretariat realized that there was a precedent on this matter, i. e. when the Group of Friends of Development (GFOD) made a similar request, and thus, it had followed the precedent.

Some 4-5 hours of discussions took place on this matter in the CDIP, till the close of its meeting at half-past midnight, with an agreement finally being reached to re-title the document as "Information on Development Agenda Group Guiding Principles", and removal of the words "Document prepared by the Secretariat" and a paragraph that stated: "The CDIP is invited to take note of the information contained in the Annex of this document". The numbering of the document remained untouched.

This matter prevented discussion on the Chair's summary, and as a result, Member States were requested to send their comments on the summary in two weeks.

Much of the week-long discussion revolved around the coordination mechanism.

Member States spent many hours in informal negotiations in an attempt to bridge the differences over the mechanism. The final outcome on which consensus emerged is in the form of a GA decision and contains the following elements:

To adopt the following CDIP coordination mechanism principles:

-- The aim of the Development Agenda is to ensure that development considerations form an integral part of WIPO's work and the coordination mechanism should promote this aim.

-- CDIP, in accordance with its mandate, has the responsibility to monitor, assess, discuss and report on the implementation of all recommendations adopted.

-- All WIPO Committees stand on an equal footing and report to the Assemblies.

-- To avoid duplication of WIPO's governance arrangements, the coordination mechanism should be consistent with, and where practical, use existing governance structures and procedures.

-- The coordination of the CDIP with other relevant WIPO bodies should be flexible, efficient, effective, transparent and pragmatic. It should facilitate the work of the CDIP and the respective WIPO bodies.

-- The coordination should be within the existing budgetary resources of WIPO.

-- To establish a CDIP standing agenda item dealing with item (b) of the CDIP mandate.

[Item (b) of the CDIP mandate states: "monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose it shall coordinate with relevant WIPO bodies".]

The agenda item: should be the first substantive item on its agenda; and shall be allocated sufficient time to complete its deliberations within the meeting schedule.

-- To extend, on an exceptional basis, if clear need is identified, the duration of CDIP sessions, subject to the agreement of all Member States. In addition, during discussion of future work, the Committee may consider the duration of the next CDIP meeting.

-- To instruct the relevant WIPO bodies to include in their annual report to the Assemblies a description of their contribution to the implementation of the respective Development Agenda recommendations. The GA shall forward the reports to the CDIP for discussion under the first substantive item of its agenda. The GA may request the Chairs of the relevant WIPO bodies to provide it with any information or clarification on the report that may be required.

-- To instruct the CDIP to include a review of the implementation of the Development Agenda recommendations in its report to the General Assembly, to be discussed in the General Assembly under the standing item of the Report of the CDIP, as a sub-item entitled "Review of the implementation of the Development Agenda Recommendations".

-- To instruct the relevant WIPO bodies to identify the ways in which the DA Recommendations are being mainstreamed in their work and urge them to implement the Recommendations accordingly.

-- To urge the Director-General to facilitate the coordination, assessment and reporting of all the activities and programmes undertaken by the Secretariat with respect to the Development Agenda and to provide regular updates, through written submissions or oral briefings, on the progress of the implementation of the DA recommendations to the CDIP, the GA and relevant WIPO bodies. In particular, updates should focus on the work undertaken by other relevant WIPO bodies concerning implementation of the DA recommendations.

-- To request the CDIP to undertake an independent review of the implementation of the DA recommendations at the end of the 2012-2013 biennium. Upon consideration of that review, the CDIP may decide on a possible further review. The terms of reference and the selection of independent IP and development experts will be agreed by the CDIP.

-- To strengthen existing mechanisms within WIPO, such as the Internal Oversight function, modalities for implementation of WIPO's evaluation policy and the Programme Performance Reports, in order to effectively support the review and evaluation of the implementation of the Development Agenda recommendations.

-- To include in the WIPO Annual Report to the UN, a report on the implementation of the Development Agenda, pursuant to the Agreement between the UN and WIPO.

The week-long meeting also discussed and approved several projects to implement the DA recommendations.

On "Intellectual Property & Public Domain" (CDIP/4/3/Rev), the Secretariat was requested to prepare a new project proposal for the next CDIP session, which inter alia undertakes a study that could cover the following elements: the important role of a rich and accessible public domain; the impact of certain practices in the field of patents on the public domain; and possible norm-setting activities at WIPO to enhance the public domain.

The trademarks component of the project was agreed to with some modifications.

[The copyright and patent components of the project on IP & Public Domain were approved at the last CDIP, with the understanding that additional elements could be added to the patent component of the study.]

This new project was requested, as the US remained adamant that the existing document could not be amended to accommodate the request that the study on patents and public domain should also discuss the implication of practices in the area of patents, such as patent thickets, ever-greening of patents, patent term extension, pre- and post-grant patent opposition and disclosure requirements, on the public domain etc.

The study presented in the existing document (CDIP/4/3/Rev) only pertains to a study about the role of patent information in the identification, access and use of public domain material.

The CDIP meeting also discussed and approved projects on "Intellectual Property and Socio-economic Development" (CDIP/5/7); the project on "Intellectual Property and Product Branding for Business Development in Developing Countries and Least Developed Countries (LDCs)" (CDIP/5/5); and with some modifications, the project on "Capacity Building in the Use of Appropriate Technology-Specific Technical and Scientific Information as a Solution for Identifying Development Challenges" (CDIP/5/6).

On the project on IP and Socio-Economic Development, Egypt on behalf of DAG said that it was its view that the proposed broad themes need to be further modified in order to capture the essence of Recommendation 35 which requires assessment of the “economic, social and cultural impact of the use of intellectual property systems in these States.” It added that the proposed broad themes should also address the social and cultural dimensions, in addition to the economic dimension. Furthermore, the DAG emphasized the importance of rigorous terms of reference and methodologies to ensure that the studies reflect ground realities; are well researched, empirical, objective, and are of high quality.

In relation to the project on "Intellectual Property and Technology Transfer" (CDIP/4/7), the Secretariat was tasked with the preparation of a revised project proposal, taking into consideration discussions held on the "Non-Paper on the Project on Intellectual Property and Technology Transfer 'Common Challenges - Building Solutions'" prepared by the Secretariat. The non-paper is divided into three parts: proposals with substantial amount of common ground; proposals where a common solution may be developed; and diverging proposals.

[At the fourth CDIP session, a group of like-minded countries (LMG), led by Egypt, presented detailed comments on the project document CDIP/4/7 prepared by the Secretariat. The proposed project consists of five components: a high-level expert forum; undertaking of studies (the nature of the studies being vague); web-based forum; creating a platform for technology transfer; and holding of five regional meetings related to the platform. Following discussions, it was agreed that the Secretariat would prepare a non-paper for discussion at the fifth CDIP session, after receiving the comments of the LMG as well as other Member States on the project document.]

During the CDIP meeting, informal consultations were held on the technology transfer project to bridge differences and agree on elements of the project. However, according to a diplomat attending the meeting, Group B was hesitant to agree to any outcome on the project during the CDIP meeting, thus, the matter was tasked to the Secretariat.

The meeting also discussed a study prepared by the Secretariat titled "Patent Related Flexibilities in the Multilateral Legal Framework and their Legislative Implementation at the National and Regional Levels" (CDIP/5/3).

Several developing countries called for the study to be expanded to other areas, e. g. copyright, trademarks, industrial designs etc., for the study to analyse other flexibilities such as transitional period, patentability criteria and opposition systems, as well as for the study to identify constraints that developing countries face in using the flexibilities.

Developing countries also stressed on the importance of inviting countries to make better use of existing flexibilities, putting together a manual on flexibilities for use in the field, as well as organizing seminars, and national and regional workshops on use of flexibilities. Many countries also pointed out that the document was an evolving one and should be left open to further inputs.

India said that it saw the document as a preliminary study, adding that the paper does not follow the approach of a practical hands-on guide and that it needs to be more focussed and outcome-oriented, going beyond factual re-counting. It also said that the starting point of such a study should perhaps be addressing the issue of reduction of flexibilities as a result of the TRIPS Agreement.

Argentina made it clear that in its view, the issue of TRIPS-plus does not come under the umbrella of flexibilities.

The US said that the study pertained only to patent flexibilities and that anything beyond that would need further reconsideration.

It was thus agreed that the WIPO Secretariat would revise the document to reflect the comments of Member States, and present it to the next CDIP session.

The CDIP also discussed the "Report on WIPO's contribution to the United Nations Millennium Development Goals (MDGs)" (CDIP/5/3).

Egypt on behalf of DAG welcomed the Secretariat’s report as  a timely contribution in anticipation of the September discussion on this important issue in New York. It noted however that the Report does not assess or make an empirical evaluation of WIPO’s work on the MDGs. Nonetheless, it reminds us that intellectual property ultimately aims to provide for a better quality of life as stipulated under the MDGs, and that WIPO is part of the broader mission of the United Nations, Egypt added. Egypt also requested that the High-level Task Force on the Implementation of the Right to Development be invited to the upcoming sixth session of CDIP to present its findings on the review of the WIPO Development Agenda, which the High level Task force viewed as a significant process in the context of MDG 8 (Target F on transfer of technology) and concluded that the WIPO Development Agenda was “one of the most – and arguably the most - important of the current global initiatives in advancing the realization of the right to development.”

Iran noted that the report does not assess the impact of WIPO’s work on the MDGs, but merely provides an overview of how different aspects of WIPO’s work contribute to the achievement of the MDGs. On Goal 1(Eradication of extreme poverty and hunger), Iran said that there were other important areas other than agriculture and SME which should have been covered too. For instance, health and education are also important factors in relation to impoverishment which in turn contributes to hunger and in regard to these factors as well IP plays a crucial role, Iran added. Indeed, as acknowledged in the UN Millennium Project Report, particularly in relation to access to medicines, there is a need to revisit IP rules from the perspective of the developing countries, Iran further said, adding that the extent to which WIPO’s activities contribute positively to achieving MDG goal 1 is unclear.  

On MDG Goals 4, 5 and 6 (Reduce child mortality; Improve Maternal Health; Combat HIV/AIDS, Malaria and Other Diseases), Iran said that the report lists a set of initiatives and activities without actually reporting on any of them. It referred to paragraph 28 which mentions WIPO’s “cooperation and dialogue” with international partners, and that it is “engaged actively” and “working closely” with the WTO and WHO, particularly in the context of the WHO’s Global Strategy and Plan Of Action on IP, Innovation and Public Health, however, no details are provided on the nature of such cooperation. Information is needed on the training activities conducted with WTO on the public health implications of IP, Iran added. Moreover, WIPO should explain how its legislative advice on the use of flexibilities and its inputs to the WHO processes adhere to the Development Agenda and the MDG, Iran further said.

On MDG Goal 7 ( Ensure Environmental Sustainability), Iran  said that the report reflects a pro-IP approach towards ensuring access to clean technology for meeting environmental challenges and refuses to acknowledge that IPRs have in many instances been a barrier to accessing environmentally sound technologies for firms in developing countries. With regard to Goal 8 (Develop a global partnership for development), Iran said that meaningful contribution towards MDG 8 and all other MDG goals will require WIPO to address the barriers posed by inappropriate standards of IPR protection towards addressing the development challenges. Iran also supported proposal for WIPO to revise the report.

It was agreed that the report would be revised and re-submitted to the next CDIP session. +