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Info Service on Intellectual Property Issues (May14/11) WIPO: Developed countries resist movement on IP and development Geneva, 25 May (Alexandra Bhattacharya) – Discussions at the World Intellectual Property Organization on integrating development into intellectual property regimes ended with no agreement. The thirteenth session of the WIPO Committee on Development and Intellectual Property (CDIP) witnessed recurring divergence on a number of key agenda items. Due to the lack of agreement and views, which at times could be characterized as “poles apart”, decisions on a number of crucial items were postponed till the next session. The WIPO CDIP session took place in Geneva from 19 to 23 May, chaired by Ambassador Mohamed Siad Doualeh of Djibouti. The
summary by the Chair of the meeting is available here: The issues where the disagreement was most apparent and decisions could not be reached included: (i)
Terms of Reference for the Independent Review of the Implementation
of the Development Agenda Recommendations; In particular, there was expectation that the session of the CDIP would be able to finalize the Terms of Reference for the Independent Review of the Implementation of the Development Agenda Recommendations and this occupied a significant amount of the committee’s time in the form of informal consultations. Views on the WIPO Development Agenda The lack of results led to member states to make closing statements which were telling evidence as to the difference in opinion with respect to the role and direction of the Development Agenda inWIPO. Egypt stated that the onset of the Development Agenda (DA) had changed the course of how the organization functioned. It had transformed from an “exclusive club of technical nature” to that geared towards development. It reiterated that the DA was an overall policy orientation of the organization and could not be “ reduced to the mere provision of technical assistance”. It also cautioned that the future of the organization was put into question when the interests of all the members were not being met. South Africa also noted that some delegations were of the view that the organization should go back to the pre-development agenda (pre-2007 period) and itunderlined that “it can never be”. It also underlined that irrespective of who funded the organization “we don’t answer to anyone except the public of South Africa”. In their closing statement, Group B (comprising several developed countries), the European Union and the UnitedStates underlined that that the mandate of WIPO as found in the WIPO Convention was the promotion of the protection of intellectual property across the world. The United States also stated that that it was seen lately that “the Development Agenda is being used to block work in a number of WIPO Committees”. It further added that it was unfortunate that “the positive effects of the organization have been impeded by the mischaracterization of the (DA)”. The US also said that there was a need to “collectively rethink the function of the DA.” Terms of Reference for the Independent Review of the Implementation of the Development Agenda Recommendations The Independent Review of the Implementation of Development Agenda Recommendations was requested under the Coordination Mechanism Decision adopted by the General Assembly in 2010. The Coordination Mechanism states: “To request the CDIP to undertake an independent review of the implementation of the Development Agenda 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”. Since the 10th CDIP session the DAG and the Africa Group have been pushing for the Committee tobegin discussion on the Terms of Reference and selection of experts for theReview. At the 11th CDIP session the DAG and the Africa Group submitted a Joint Proposal on Terms of Reference and Methodology for the Independent Review of the implementation of the Development Agenda Recommendations (CDIP/11/8. The previous 12thsession of the CDIP was unable to finalize the Terms of Reference. During the 13th CDIP session, Group B attempted to reopen even elements of the draft ToR that were agreed to during CDIP 12. At the end of the 13th CDIP session, after 5 informal consultations, the facilitator (Ms Ekaterine Egutia from Georgia) stated that despite “excellent progress”, “there was just one word which was the subject of disagreement” in the draft terms of reference (ToR). This was relating to the use of the word “practical” with respect to the experience of the group of experts to be selected for undertaking the review. According
to the Chair, Group B was in favor of using the word “practical” whereas
the Development Agenda Group (DAG) and the African Group were of the
opinion that this was not an important requirement. According to sources Group B attempted to limit the Review exercise not only in terms of scope but also in terms of budget. With respect to the scope of the Review, a particularly controversial issue was whether the Review should relate to the WIPO’s “activities” or “work” in relation to the implementation of the Development Agenda Recommendations for the period from 2008 to 2013. According to sources, Group B insisted that the purpose and scope of the Review should be limited to WIPO’s “activities”. Limiting the scope of the Review to WIPO’s activities would have narrowed the scope of the Independent Review, as the focus of the Review would only have been on the specific activities undertaken by WIPO to implement DA. The Review would not have assessed implementation of the 45 DA recommendations in its entirety. However, there is now conditional agreement from Group B to the use of “ WIPO’s work”, but this is dependent on how it will be defined in the ToR. Additionally, in terms of deliverables, Group B has been insisting on a “concise” document of no more than “10 to 15 thousand words”. Several delegates were of the view that such a condition is extremely limiting and unreasonable considering that anevaluation report for a single CDIP project can contain about 45 pages (14709 words) e.g. the Evaluation Report on South-South Cooperation (CDIP/13/49). In terms of the Key questions to be addressed in the Review, according to a developing country delegate attending the informal consultations, there is general consensus on this part of the text, although again dependent on thedefinition of “WIPO’s Work.” One of the latest drafts of the ToR lists the key questions to be addressed as the following: Relevance: [According to sources, there has been general consensus on this amended text based on thefollowing proposal from Chile]:to what extent WIPO’s work and the results of its activities for the implementation of the Development Agenda Recommendations serve the needs of Member States, stakeholders and other intended beneficiaries? Impact: what is the impact of WIPO’s work in the implementation of the Development Agenda Recommendations? To this end, the Review must address the actual impact of WIPO’s work in the implementation of the Development Agenda Recommendations at various levels and across WIPO’s bodies and programs. Effectiveness: to what extent is WIPO’s work effective in the implementation of the Development Agenda Recommendations? To this end, the Review must address whether WIPO’s work has been effective in achieving the outcomes in line with the Development Agenda Recommendations and also, whether the project-based approach has been effective. Efficiency: how efficiently has WIPO used the human and financial resources in its work directed at the implementation of the Development Agenda Recommendations? Sustainability:
to what extent are the results of WIPO’s work sustainable in the long
term? To this end, the Review must also identify the best practices
and the lessons learned from the WIPO’s work in the implementation
of the Development Agenda Recommendations with the view to achieving
sustainable outcomes in future. This lack of a decision on the ToR during CDIP13 means that the Independent Review will be even further delayed. According to the 2010 WIPO General Assembly Decision on the Coordination Mechanism, the independent review should have begun at the end of the 2012-2013 biennium. WIPO General Assembly Decision on CDIP related matters The Chair’s summary on this agenda item, which pertains to the implementation of the mandate of the CDIP, stated that: “The Committee discussed the WIPO General Assembly Decision on CDIP related matters (document CDIP/12/5). The Committee could not reach an agreement on these matters. Accordingly, the Committee requests the General Assembly to allow it to continue the discussion during its fourteenth and fifteenth sessions and to report back and make recommendations on the two matters to the General Assembly in 2015.” For
a background to this issue, see: During the discussion on thechair’s summary, the African Group consistently stated that there was a need to include clear actions to the General Assembly 2014 in order to ensure the successful fulfillment of the mandate handed down by the General Assembly in 2013. Group B, on the other hand, stated that there was a need to ensure that no unresolved issues were forwarded to the already heavily burdened General Assembly. [The General Assembly, in its decision (reproduced in CDIP/12/5), instructed theCDIP to discuss the issueduring the 12th and 13th sessions of the CDIP and to“make recommendations on the two matters to the General Assembly in 2014".] The International Conference on Intellectual Property and Development The CDIP also decided to postpone the discussion on the convening of an International Conference on Intellectual Property and Development to the future session of the CDIP. The issue of divergence relates to the list of speakers for the Conference and the amount of input Member States could have with respect to the list of speakers. The Chair’s summary of the discussion states that: “The Committee discussed the matter of the InternationalConference on Intellectual Property and Development. The Committee did not reach agreement on the list of speakers for the Conference. It was decided to continue discussion on this issue at the next session.” The idea to convene this Conference has been under discussion since the 10th session of the CDIP when it was agreed to organize such a conference in Geneva in the second half of 2013. However, following the 11th session due to the lack of consensus on the list of speakers prepared by the Secretariat and endorsed by the Group Coordinators, the Conference has been postponed. The 12th session of the CDIP also did not have time to consider the issue. The African Group and DAG during the CDIP expressed the need for Member States to have input in the selection of experts in order to ensure a balanced approach on the content of the themes as well as in the selection of speakers and panelists. This had been rejected by Group B who was of the opinion that the Secretariat should maintain full control of the list of speakers and to avoid member states from “micro managing” the Secretariat. In order to bridge a middle ground, the Group of Latin American and Caribbean Countries (GRULAC)submitted a proposal, which stated that: “Under Agenda Item 7, the Committee discussed the matter of the International Conference on IP and Development. The Committee agreed to hold it [prior/at the CDIP 14][on xx/xx/xxxx] The Secretariat was requested to check the availability of the experts proposed as speakers in the list contained in document WIPO/IPDA/GE/13/INF/1 Prov. Members [and Groups, if so agreed] are invited to submit a list of speakers before [June 15th] to be considered by the Secretariat when finalizing the list of speakers [and in the event the need to fill the vacancies arises][with a view to replace the unavailable speakers with the new nominees].” Despite an appeal from GRULAC for flexibility and the assurance that its proposal was merely to enable the opportunity for Member States to suggest additional names, Group B countries did not support it. In this context, GRULAC withdrew its proposal. External Review of WIPO Technical Assistance in the Area of Cooperation for Development No substantive way forward could also be reached with respect to taking forward recommendations stemming from the External Review on WIPO’s Technical Assistance in the Area of Cooperation for Development. As seen in previous sessions, Group B was reluctant to engage in a substantive discussion on the basis of the DAG andAfrican Group Joint proposal (CDIP/9/16) which identified recommendations of the External Review that should be taken forward and implemented. The Chair’s summary of the discussion states that: “The Committee discussed the External Review of WIPO Technical Assistance in the Area of Cooperation for Development (documents CDIP/8/INF/1, CDIP/9/14, CDIP/9/15, CDIP/9/16 and CDIP/11/4). The Committee could not reach an agreement and decided to consider the issue at its next session”: [The
External Review on WIPO’s Technical Assistance in the Area of Cooperation
for Development (CDIP/8/INF/1) undertaken by two experts was presented
at the 8th CDIP session in November 2011. This Review for the
first time provided an in-depth analysis of WIPO’s technical assistance
activities and attempted to shed light on the effectiveness, impact,
efficiency and relevance of those activities. However,
this was resisted by Group B who stated that the recommendations of
the External Review were made by external experts and the CDIP was
under no obligation to implement them. Group B was unwilling
to engage on any substantive discussion based on the African Group
and DAG Joint proposal.Group B further noted that the best way forward
would be the compilation of best practices in the area of technical
assistance. The only new project approved by the CDIP was Phase II of the Project on Capacity Building in the Use of Appropriate Technology – Specific Technical and ScientificInformation as a Solution for Identified Development Challenges (CDIP/13/9). The project aims to improve the national capacity of LDCs with respect to the management, administration and utilization of technical and scientific information with a view to building their appropriate technologybase and meeting national growth and development goals. The project will be implemented in three LDC countries. The CDIP also agreed to extend the CDIP project on Enhancing South-South Cooperation on IP and Development Among Developing Countries and Least Developed Countries “for one year, allowing the completion of the outstanding activities within the remaining project budget”. The project document CDIP/13/8 For Intellectual Property and Tourism: Supporting Development Objectives and Protecting Cultural Heritage in Egypt and Other Developing Countries which was based on a project proposal by Egypt during CDIP 12 was welcomed by around 20 member states including Kenya, Thailand, Rwanda, Tanzania and Senegal. The project aims at analyzing, supporting and promoting awareness of the role of the IP system in tourism-related economic activity, including activity related to the IP protection, safeguarding and preservation of cultural heritage. However, approval for the project during the session could not be garnered from Group B including the EU and the US who objected to the reference to “IP norms and principles related to traditional knowledge and traditional cultural expression” stating that these issues were currently being considered by the WIPO IGC and should not be included as part of the project. It was decided that the project would be further discussed during the next session. The US objected to any idea of inter sessional work on this topic prior to the next CDIP. The CDIP also agreed that a “document, based upon factual compilation with no recommendations whatsoever, on two new patent-related flexibilities be prepared for discussion at a future session of the CDIP, namely, the flexibility to apply or not, criminal sanctions in patent enforcement (TRIPS Art. 61) and measures related to security which might result in a limitation of patent rights (so-called “security exception”) (TRIPS Art. 73).” This is with respect to the agenda item on Future Work on Patent-Related Flexibilities in the Multilateral Legal Framework (CDIP/10/11) The next session of the CDIP is expected in November, 2014.
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