TWN Info Service on Intellectual Property Issues (Sept12/01)
20 September 2012
Third World Network

WIPO: Oversight needed on intellectual property and public policy activities
Published in SUNS #7441 dated 20 September 2012

London, 19 Sep (Sangeeta Shashikant) -- The World Intellectual Property Organisation's (WIPO) engagement with public policy issues, particularly food security, public health and climate change, have heightened concerns among developing countries and non-governmental organisations (NGOs) leading to calls for more oversight and information.

WIPO's activities on intellectual property (IP) and public policy issues are undertaken under Program 18 titled "IP and Global Challenges". This program coordinates with Program 20 (External Offices and Relations) and through this cooperation engages in a range of United Nations and other intergovernmental processes and negotiations on a variety of issues, including those pertaining to public health, food security and climate change.

WIPO's extensive engagement on these issues has created significant unease among developing countries as currently there is no oversight by Member States over the activities WIPO conducts under the Program or the positions it takes on the inter-linkages between IP and public policy issues, as it engages in various intergovernmental processes.

At the recent Program and Budget Committee (PBC) meeting on 10-14 September, countries reviewed WIPO's performance in implementing Program 18.

The African Group and the Development Agenda Group (DAG) requested for "more frequent reporting by program manager before the proper WIPO committee" such as the Committee on Development and IP (CDIP) and the Standing Committee on Patents (SCP). The African Group and DAG also stressed that a one-time review of the program during the PBC was inadequate "given the important activities conducted by this program".

NGOs have also expressed concerns with regard to the activities of Program 18. In recent months, a group of NGOs has written letters to Mr. Francis Gurry, the WIPO Director-General, and Mr. Johannes Christian Wichard, the Deputy Director-General, raising various concerns with regard to the Secretariat's approach to food security.

In the first letter dated 18 July 2012, the NGOs raised concern with regard to the organisation of a workshop in May 2012 on IP and Food Security, stating that the "workshop lacked a balanced range of topics and participants and consequently failed to deliver the full range of perspectives on the role of IP". In line with the Development Agenda recommendations, the NGOs also requested more information on the workshop.

In another letter dated 5 September, the same NGOs, disappointed with WIPO's "non-committal" response to their letter, reiterated their request for more information on the workshop organised in May and stressed that future meetings should have a balanced representation of participants and perspectives, including critical perspectives of the role of the IP system.

In response to the Secretariat's assertions, including its claim that there was "consensus" from conferences it had organised, "on the enabling role of an effective legal and administrative framework of intellectual property for innovation and agricultural development", the NGO letter also requests for more information on specific decisions of WIPO's Member States that has "mandated WIPO to explore the role of IP in increasing agricultural productivity and the conclusions that have been reached on the matter", adding that WIPO's policy decisions must be driven by Member States.

Concern over activities of the Global Challenges program and the demand for more oversight by developing countries is not new. It has been raised by developing countries on numerous occasions, but has made little headway due to opposition from developed countries.

At the 2011 PBC session, South Africa, on behalf of the African Group, noted that Program 18 addressed important issues but the activities were not being discussed by Member States in any platform in WIPO. It recommended that the program activities be discussed in the existing intergovernmental forum, that is by the SCP or the CDIP.

This recommendation was reiterated and supported by many other developing countries such as the Development Agenda Group, India, Pakistan and Brazil. Brazil also expressed concerns regarding the mandates followed within Program 18 and the need for its activities to be reported to a WIPO body to allow all Member States to have a say on the priorities and the implementation of this program.

However, the recommendation faced significant opposition from developed countries, as they insisted that discussing Program 18 activities in the SCP or the CDIP would require a change in those committees' mandates and this they could not support. Developed countries preferred maintaining the status quo, that is for the PBC to discuss activities of Program 18. However, this was not acceptable to developing countries, which felt that substantive guidance had to be given to the Secretariat and this could not be done through the PBC.

Developed countries' resistance to more oversight over Program 18 persisted at the recent September PBC, during discussion on Program Performance Report for the 2010/11 biennium, as Member States reviewed the Secretariat's performance under Program 18.

In the Program Performance Report - a self-assessment report - the Secretariat states that the program on IP and Global Challenges "finalized implementation of its first full biennium in 2010/2011 contributing to WIPO's goals by providing support for strong, empirically well-founded policy dialogues between governments, international organizations, civil society actors and the private sector on current and emerging global issues touching on IP".

During the discussion, the Secretariat highlighted the trilateral cooperation between the World Trade Organisation, World Health Organisation and WIPO on IP, trade and health, adding that the policy overlaps need to be managed. It also highlighted the WIPO "Re: Search" initiative, adding that technology transfer agreements have been concluded and a meeting of partners will take place in October.

[According to WIPO, the Re: Search initiative is a new consortium where public and private sector organisations share valuable IP and expertise with the global health research community to promote development of new drugs, vaccines, and diagnostics to treat neglected tropical diseases, malaria, and tuberculosis. However, the access terms promoted by Re: Search has been criticised by public health groups such as Medecins Sans Frontieres, which noted that "... instead of allowing all countries where neglected diseases are prevalent to access the products, the initiative restricts royalty-free licences to least-developed countries only, with access for other developing countries negotiable on a case by case basis", adding that "With its timid approach to licensing terms, WIPO is falling behind in its access policies, when it should be leading".]

On climate change, the Secretariat highlighted a pilot platform known as "WIPO GREEN" that aims to promote accelerated adaptation, adoption and deployment of environmental technologies, particularly in developing countries and emerging economies.

[According to the WIPO website, this initiative "Serves as a hub connecting various critical partners, with WIPO facilitating policy dialogue and networking" where WIPO positions itself as a broker for "owners of proprietary technologies to make selected technologies and solutions available as packages, including know-how, services and materials". It offers "credibility", billing itself as "A trustworthy entry - through WIPO and other intergovernmental and non-governmental organization partners - into the United Nations Framework Convention on Climate Change (UNFCCC) process, in particular its Technology Centers and Networks." Some NGOs who follow the climate negotiations, where IP is extremely contentious, expect similar restrictions as those in the Re: Search initiative.]

On food security, the Secretariat said that it was exploring what WIPO can do in the area, adding that it had identified East Africa, in particular Tanzania, as a case study on the potential use of IP to improve productivity.

In response to the information on Program 18 provided in the Program Performance Report, Egypt, on behalf of the African Group and the DAG, said that it attached heightened importance to the activities of Program 18 because it deals with key policy issues of significant interest to African and developing countries, especially public health, food security and climate change. Egypt then noted that the report on Program 18 in the Program Performance Report makes the general statement that "design, planning and implementation of activities undertaken by the program were guided by relevant DA (Development Agenda) recommendations".

It added that "While such a statement is welcomed, it is not explanation or elaboration on what exactly DA recommendations guided the program, how the guidance was ensured, and what are the specific results the program achieved last year to address the challenges of food security, public health and climate change in African and developing countries".

Egypt stressed the need for more frequent reporting by the program manager before the proper WIPO committee, given the fact that PBC reviews the Program Performance Report (PPR) once a year, and the important activities conducted by this program.

"In this context, we would like to suggest that given the fact that the program was engaged in the implementation and preparation of four development agenda projects on technology transfer, open collaborative and IP based models and IP competition policy, then it would be appropriate to make the required additional reporting of program 18 before the Committee on Development and Intellectual Property. In addition, it could be also presented before the Standing Committee on Patents because of the integral substantive relationship between the program activities and the international patent system, and national experts and officials on patent issues will be present to make use of these several activities", Egypt added.

South Africa said that it would appreciate a written report on what WIPO was doing and the challenges it was facing, adding that there was a need to discuss the issues in the SCP or in CDIP. It also sought clarification on how WIPO defined "green technology" and whether WIPO had an "indicative list" of such technologies.

Brazil and Pakistan also supported the call for the Secretariat to provide more written information on its activities.

The United States questioned the value added from extra reporting to the SCP and the CDIP, while Switzerland said that there was no need for further reports apart from what was in the Program Performance Report, adding, "We have the necessary detail. We don't need to go beyond that". It also claimed that there was agreement that the PBC was the right forum to discuss these issues.

Egypt, responding to the US's question, stressed that there was indeed value in additional reporting, stressing that Program 18 was presented as part of PPR once a year. It added that CDIP was relevant because the report on Program 18 itself had a clear statement that the Program was engaged in preparation of a number of CDIP projects while the SCP was relevant because it related to the patent system, further stating that there were no experts on public health, food security or climate change in the PBC.

South Africa, supporting Egypt's response, countered the Swiss statement, pointing out that it was inaccurate to say that countries had agreed at the last PBC not to have additional reporting. It stressed that it was not advisable for Member States to simply rely on the Program Performance Report and the oral information presented by the Secretariat. "We feel that we can add value by giving additional direction to WIPO," South Africa said.

China also concurred that it was important to discuss issues of Program 18 in other committees including the CDIP.

No specific decision was taken on the matter. However, developing countries insisted that they preferred "to note" rather than approve the Program Performance Report. Developed countries opposed this approach. The final decision reached states: "The Program and Budget Committee (PBC) having reviewed the Program Performance Report (PPR) and recognizing its nature as a self-assessment of the Secretariat, recommended its approval to the General Assembly, subject to the comments, concerns and suggestions for improvement raised by Member States and reflected in the report of the PBC as well as annexed to the PPR (document WO/PBC/19/2)".

NGO CONCERNS ON WIPO'S ENGAGEMENT ON FOOD SECURITY

In recent months, a group of NGOs concerned with WIPO's activities on IP and food security in Africa has also written repeated letters to the Director-General and the Deputy Director-General highlighting their issues and concerns and requesting WIPO for more information on its activities.

WIPO organised a workshop on Intellectual Property, Innovation and Food Security on Sustainable Wheat Production in East Africa, which took place in Geneva on 10-11 May 2012. Following the workshop, seven NGOs and NGO networks raised concerns in a letter to WIPO dated 18 July 2012.

The letter was signed by the Tanzania Alliance for Biodiversity, an alliance of many NGOs; the African Centre for Biosafety, South Africa; the Eastern & Southern Africa Small Scale Farmers Forum (ESAFF); Surplus People Project; Swissaid Tanzania; Tanzania Organic Agriculture Movement (TAOM); and the Tanzania Organic Certification Association (TANCERT).

The letter expressed concern that participation in the workshop was dominated by representatives from the private sector and the biggest and most powerful multinational corporations (e. g. BASF, Bayer CropScience, Dow Agro Sciences, DuPont, Monsanto, and Syngenta), adding that there was hardly any representation of civil society organisations that champion farmers' rights or even of key national farmers' organisations.

The letter further states that the workshop programme largely took a one-sided approach, that is of promoting the IP system as a mechanism for food security without exploring alternative or different perspectives on the subject, adding that the approach was clearly tilted in favour of industry interests, in particular multinational corporations.

The letter also expressed concern that representatives of corporations seem to have played a central role in several sessions of the workshop. For instance, according to the programme, Dr. Michael Kock, the Global Head of Intellectual Property, Seed and Biotechnology for Syngenta International AG was the main and only contributor for the session titled "Brainstorm Initial Thoughts on Next Steps - How to Build Areas of Future Focus".

Thus, overall, the NGOs were of the view that the workshop lacked a balanced range of topics and participants and consequently failed to deliver the full range of perspectives on the role of IP, including critical views about the IP system relating to the adverse impacts on food security or agro-biodiversity such as those articulated by Mr. Olivier de Schutter, the United Nations Special Rapporteur on the Right to Food.

The letter also said that the programme and participants were heavily tilted in favour of the interests of the private sector, particularly multinational corporations, stressing that the strategies of many of the corporations represented was basically to use intellectual property laws to commodify the world seed supply, control plant germplasm and maximise company profits by eliminating farmers' rights, in particular their right to save, use, exchange and sell seeds.

In the letter, the NGOs requested, in line with Recommendation 5 of the WIPO Development Agenda, that WIPO make available publicly and to the signatories full information about the workshop, including presentations, report of the proceedings of the workshop, expected and actual outcomes of the workshop, and information on any follow-up that is expected to take place.

It also requested that for future similar workshops, WIPO ensure balanced representation of participants and perspectives. In particular, the workshop should also discuss critical perspectives of the role of the IP system and ensure adequate participation of civil society groups and farmer groups that do not represent commercial interests but rather champion farmers' rights and the conservation of agricultural biodiversity for livelihood security and food sovereignty. The signatories also expressed willingness to participate in future discussion involving African countries, provided travel assistance is made available.

In its response dated 23 July 2012, the WIPO Deputy Director-General said that many organisations including the Food and Agriculture Organisation (FAO), the UN Development Programme (UNDP) and the UN Committee on World Food Security (CFS) have identified increasing agricultural productivity as a key component in the fight against food insecurity, adding that "Member States have tasked WIPO to explore what the proper role and contribution of intellectual property might be to this struggle".

Within the framework of that programme, WIPO held the workshop to explore possibilities for a case study on the role of IP protection for sustainable wheat production in Tanzania, WIPO further added.

It also said that "present or otherwise associated" were government officials and scientists from Tanzania, professors from Sokoine University in Tanzania, representatives from the Consultative Group on International Agricultural Research (CGIAR), the Maize and Wheat Improvement Centre (CIMMYT), FAO and UPOV, the Tanzania-based private breeding and seed sector, representatives of companies operating globally in wheat- related innovation, the International Seed Federation (ISF) and "with a view to a possible future cooperation, potential donors".

The response further adds that the various public conferences on the topic found "there was a consensus on the enabling role of an effective legal and administrative framework of intellectual property protection for innovation and agricultural development". The response further states: "... we are still very much at a preliminary stage of this work" and "Depending on the progress made, the intention is clearly to associate further partners that may be able to contribute to the balanced and appropriate use of intellectual property in creating an enabling environment for increasing agricultural productivity at an appropriate moment".

The NGOs (the same signatories) in yet another letter sent in September 2012 reiterated their concerns and request for more information on the workshop held, as WIPO had failed to provide the information requested. The letter also states that it found WIPO's response "disappointing, as it is non-committal about ensuring that future meetings have a balance[d] representation of participants and perspective", adding that it found WIPO's current approach to IP and food security, "totally unacceptable".

The letter also sought information on "which specific decision of WIPO's Member States has mandated WIPO to explore the role of IP in increasing agricultural productivity and the conclusions that have been reached on the matter". It also adds that being an intergovernmental agency, WIPO's policy decisions have to be taken by Member States and that it was inappropriate for WIPO to take the position that there is consensus on the matter on the basis of "public conferences".

The letter also highlights the findings of the report of the UN Special Rapporteur on the Right to Food that illuminated the several adverse impacts of the IP system, including neglect of the needs of poor farmers in developing countries, unaffordable agriculture inputs, the jeopardising of farmers' seed systems and threatening agro-biodiversity. The letter stresses that WIPO, being a UN agency, "needs to acknowledge and incorporate (not disregard) these considerations in its work on IP, innovation and agriculture".

[To the knowledge of the author, no further information or response has been received from WIPO at the time of writing.]