TWN
Info Service on Intellectual Property Issues (Oct14/03)
8
October 2014
Third
World Network
Dear
friends and colleagues,
We
are pleased to share with you the statements made by TWN’s representative,
K M Gopakumar, on several agenda items of the 46th Session of the
General Assembly of the World Intellectual Property Organization that
took place on 22 to 30 September in Geneva.
With
best wishes,
Third
World Network
Statements
of Third World Network at the 46th Session of WIPO General Assembly
22-30 September 2014, Geneva
Agenda Item 5: General Statements
Thank You Madam Chair,
We take our two minutes to convey the following points to the 46th
WIPO General Assembly.
First, we take this opportunity to remind all of us that WIPO ceased
to exist as an organisation only to protect intellectual property
rights on the day it was recognised as a United Nations Specialised
Agency.
Let me read out Article 2 of the Agreement, in an attempt to refresh
memory, which creates a legal obligation on WIPO:
“The United Nations recognizes the World Intellectual Property
Organization (hereinafter called the "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, subject to the competence
and responsibilities of the United Nations and its organs, particularly
the United Nations Conference on Trade and Development, the United
Nations Development Programme and the United Nations Industrial Development
Organization, as well as of the United Nations Educational, Scientific
and Cultural Organization and of other agencies within the United
Nations system.” (Emphasis added.)
Therefore WIPO’s central function is to further the UN development
agenda by forwarding a balance between intellectual property protection
and enforcement with development needs of developing countries.
Second, the great challenge in front of us on the 10th anniversary
of the launch of WIPO’s Development Agenda is to mainstream development
orientation in WIPO’s activities, especially the technical assistance
(TA) program. TA programs are short of serving the development purpose
and often directly and indirectly advocate for TRIPS Plus measures.
The Secretariat needs to draw from the examples of use of various
intellectual property flexibilities by various developing countries
to meet their development needs, such as the use of Compulsory License
for HIV/AIDS medicines by Indonesia and the curbing of patenting of
known substances by Argentina and India.
We would like to state that WIPO should go beyond developing technology
platform because this is not mainstreaming development. We expect
WIPO to go beyond facilitate technology transfer through fair and
equitable terms.
WIPO has a major role to play in furthering the post-2015 development
agenda by facilitating the technology catching up of developing countries.
WIPO’s role as a service provider should not take precedent over the
development aspirations of two thirds of humanity.
Thank you once again.
Agenda
Item 13: Report of the Committee on Development and Intellectual Property
(CDIP) and Review of the Implementation of the Development Agenda
Recommendation
It
is the 10th anniversary of the launch of WIPO’s Development
Agenda (DA). It has been almost 20 years since the TRIPS Agreement
entered into force. It is important to recall that the DA was a genuine
response to the push for harmonizing levels of intellectual property
(IP) protection and enforcement at inappropriately higher levels than
required under the TRIPS Agreement. The DA seeks to restore the balance
in the international IP system. To that extent it is meant to block
expansion of IP protection and enforcement that would be inappropriate
for the socio-economic needs of developing countries especially Least
Developed Countries (LDCs).
During the last 10 years robust discussions on IP and development
took place during the DA negotiation as well as at the CDIP. Many
projects have been initiated as part of the DA implementation. Some
of the projects came out with excellent findings and recommendations.
It is important to translate these outcomes into WIPO’s work.
Let us take this opportunity to flag some of the challenges and shortcomings
in the implementation of DA.
One of the important challenges is the mainstreaming of DA in WIPO’s
activities. DA implementation is taking place on a project mode and
therefore continues to be marginalised in the mainstream activities
of WIPO. Outcomes of many DA projects have failed to be translated
into WIPO’s activities and programs especially in its technical assistance
(TA) activities and programs.
TA continues to be disconnected from the developmental needs of people
in developing countries and instead advocates for an IP maximalist
approach. For instance let me quote from the Methodology for the
Development of National Intellectual Property Strategies Tool 3 Benchmarking
Indicators Vol 3 (http://www.wipo.int/edocs/pubdocs/en/intproperty/958/wipo_pub_958_3.pdf)
It states “Customs authorities should have the power to intercept,
seize and confiscate goods found to be, or suspected to be, infringing
IPRs that are registered and are in force in the Country”. This
goes contrary to the spirit of promotion and use of TRIPS flexibilities.
Under the TRIPS Agreement there is no obligation to apply border measures
to all types of IP infringed goods. TRIPS obligate Member States
who are not under the LDC Exemption to apply other measures to counterfeited
trademark and pirated copyrights goods. Apart from border measures
the same WIPO publication also indirectly advocates for the UPOV model
plant variety protection, special courts etc.
The independent review of WIPO’s TA has pointed out serious shortcomings
in the technical assistance activities that were found to lack transparency
and accountability. For instance, the review of the WIPO Academy is
still not available in the public domain. Our information is that
it is not even provided to Member States. The Secretariat can correct
us if we are wrong with regard to our information on the availability
of the WIPO Academy review.
Again there is lack of transparency with regard to budget allocation
on “development expenditure”. It is important to define the term “development
expenditure” comprehensively to bring transparency with regard to
the allocation of resources for technical assistance activities. This
also highlights the urgent need to discuss governance issues, which
often blocks the mainstreaming of the Development Agenda within WIPO.
In this regard there is an urgent need to translate the Africa Group/DAG
(DA Group) joint proposal to establish certain guidelines and standards
on technical assistance, which is based on recommendations of the
independent review.
Another issue we would like to highlight is the independent review
of the implementation of DA, which was due in 2013. We call up on
the WIPO General Assembly (GA) to set a clear time line for review
of DA implementation.
Even after more than 13 sessions of the CDIP there is no progress
with regard to the establishment of a coordination, monitoring and
reporting mechanism, a mandate given by the GA. For instance, the
Program Budget Committee (PBC) does not report to the GA under the
coordination mechanism. However, it is the body which takes crucial
decisions on the resource allocation with regard to development expenditure.
It is very critical for the PBC to receive guidance through a coordination
mechanism in such deliberations that have bearing on the DA.
Similarly, the CDIP has not implemented the third pillar of the GA
decision i.e. the standing agenda item on IP and development at the
CDIP meetings.
Finally, we request the GA to take an appropriate decision to expedite
the implementation of all aspects of CDIP mandates.
Agenda
15: Matters Relating to the Standing Committee on Copyright and Related
Rights (SCCR)
We often hear of the issue of absorption capacity in developing countries
whenever there is a discussion on IP, especially patent, and transfer
of technology. The question of absorption capacity is also linked
to the question of access to knowledge. There is little discussion
in the Standing Committee on Copyright with regard to copyright and
transfer of technology.
The absorption capacity in developing countries can be built only
by enhancing the quality of technological work force in developing
countries. To do this access to knowledge in developing countries
needs to be greatly enhanced and this cannot be done without discussing
limitations and exceptions to copyright.
In particular, it is critical to urgently expand the availability
of new and quality educational materials in educational institutions
in developing countries.
This includes not only textbooks but also journals and articles as
these are important for the development of quality engineers, scientists,
and other technical professionals working in R&D. Often
the high price emanating from copyright monopoly restricts access
to educational materials.
The use of copyright law in the digital context also results in the
concentration of knowledge production and circulation. Therefore,
developing countries should be cautious about ratifying WIPO Internet
treaties.
We also urge all developing country Member States to ensure that their
national copyright legislation provide for maximum exceptions and
limitations.
However, the SCCR has been unable to facilitate the creation of an
international legal architecture that ensures that copyrights law
does not impede access to knowledge. In spite of the Marrakesh
Treaty the SCCR has not adequately addressed the needs of developing
countries and the knowledge divide is perpetuated.
Therefore we urge Member States to focus the SCCR work program to
be in line with the Development Agenda to expand the limitations and
exceptions in order to enhance the technological absorption capacity
in developing countries. SCCR should seriously consider using
of compulsory licenses to access materials at affordable prices.
In this regard WIPO’s technical assistance should clearly focus on
expansion of limitations and exceptions in copyrights to increase
the technology absorption capacity in developing countries rather
than enhancing copyright protection.
Agenda
17: Matters Concerning the Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC)
It is very important to put an end to the misappropriation of traditional
knowledge (TK), traditional cultural expression (TCE) and genetic
resources through intellectual property protection.
When it comes to genetic resources and associated TK there is an urgent
need to address the conflict between the biodiversity regime and intellectual
property (IP) regime. Even though the international biodiversity regime
(the Convention on Biological Diversity and its Nagoya Protocol on
Access and Benefit Sharing) clearly sets norms for fair and equitable
benefit sharing, the current IP law is silent on such mandatory benefit
sharing. Further, regularly we are hearing new stories of bio piracy
– the act of misappropriation of genetic resources and associated
TK using IP.
The IP regime should have effective checks against the misappropriation
of TCE and genetic resources and TK.
Therefore we view the IGC process as an important process to address
the issue of misappropriation of TCE, TK and genetic resources.
It is with concern that we witness the informal consultations every
year with regard to the extension of the IGC mandate or work programme
or both because of the lack of progress in dealing with the issues.
We support the extension of IGC mandate.
Agenda
Item 17: Reports on other WIPO Committees - Standing Committee on
Patents
We attach great value to the work of the Standing Committee on Patents.
The work of SCP is expected to inform the needs of a large section
of the WIPO membership.
Access to medicines is continuing to bother all of us. Even after
20 years of the TRIPS Agreement there is no adequate investment in
R&D to meet the health care needs of developing countries. Further,
the patent regime incapacitates the majority of developing countries
from fulfilling their obligations on the right to health. Medicines
to treat cancer, infectious disease like Hepatitis C, are exorbitantly
priced and this aggravates the denial of the treatment to people,
which often results in death.
Thus the current international patent regime denies the peoples’ right
to benefit from the scientific progress and its application under
Article 15 (b) of the International Covenant on Social, Economic and
Cultural Rights.
The failure of patents as a tool for inducing inventions and innovation
prompted economists Michele Baldwin David Levine to suggest “ … public
policy should aim to decrease patent monopolies gradually but surely,
and ultimate goal should be the abolition of patents” (Boldrin, Michele,
and David K. Levine. 2013. "The Case against Patents." Journal
of Economic Perspectives, 27(1): 3-22).
There is an urgent need to interrogate the international IP regime
in general and patent protection for pharmaceuticals in particular,
which does not reflect the health and development needs of people
especially those in developing countries.
The SCP is yet to have a robust discussion on patent and public health,
transfer of technology and disclosure of International Non-proprietary
Names (INN) in patent applications. There is an organized resistance
to discuss the above topics at the SCP.We are looking forward to the
next session of the SCP for enriching discussions on these topics
that will benefit a large section of the world’s population. We are
hopeful that the next SCP may able to address some of these issues.
We call upon Member States to discuss the above-mentioned issues on
a priority basis instead of looking at patent harmonization. Harmonization
of patent law, direct or indirect, goes against the spirit of the
WIPO Development Agenda. Unilateral initiatives for work sharing
programs including patent prosecution highway (PPH) results in indirect
harmonization of substantial patent law and compromises the flexibility
existing with regard to patentability criteria. Therefore we call
upon Member States not to include any issues in the work program of
SCP, which aim at substantial or procedural processes.
Finally, the SCP should look at enhancing the capability of developing
countries to use flexibilities available under the TRIPS Agreement
and facilitate technology transfer, including the ability to negotiate
patent barriers.
Agenda
Item 17: Reports on other WIPO Committees – Standing Committee on
the Law of Trademarks, Industrial Designs and Geographical Indications
(SCT)
We take this opportunity to flag a few concerns with regard to trademark
and public policies. Brand-oriented marketing and advertisement strategies
often result in adverse implications for peoples’ health.
Often, pharmaceutical companies push doctors to prescribe brand name
instead of generic medicines. This not only compromises effective
competition in the market but also can puts the patient’s health in
danger because not all health care workers may be aware of all brand
names and are confused in identifying the right drug.
Similarly, policy makers have identified regulation and promotion
of certain products like alcohol, tobacco, processed food as necessary
steps to pursue public health goals in the context of non-communicable
diseases (NCD), promotion of nutrition, and antibiotic resistance.
This strategy would come in conflict with trademark protection. One
important way to regulate is through pictorial warning or de-branding
or detailed label requirements. For instance, Australia successfully
implemented plain packaging for tobacco products. TNCs use trademark
protection as a tool to resist and even challenge such public policy
measures to protect public health.
TNCs challenge the efforts of pictorial warning or plain packaging
of tobacco products by Member States using international arbitration
procedures under bilateral investment treaties arguing that such measures
undermine trademark protection.
It is important for SCT to discuss the implications of trademarks
on public policies.
We recall the fact that WIPO is a member of the UN taskforce on NCD
as well as the Taskforce on Tobacco Control. Hence it is imperative
that WIPO should discuss the promotion of plain packaging of tobacco,
and other harmful products like alcohol and processed food for children.
Agenda
Item 17: Reports on other WIPO Committees – Advisory Committee on
Enforcement (ACE)
We take this opportunity to call up on the Secretariat to respect
the Development Agenda in their activities on IP enforcement.
IP enforcement can often result in the denial of access to medicines
and access to knowledge.
Various national courts have refused to issue preliminary injunctions
in patent cases. Courts even allow the so-called infringer to continue
to use the patents even after they have found patent infringement.
Even President Obama used his authority against the FTC order to size
Apple products for infringing patents.
It is important for Member States to discuss these developments in
the ACE. The Secretariat should also provide technical assistance
to developing countries to use the flexibilities available with regard
to IP enforcement.
However, often the activities of the Secretariat go overboard and
suggest a maximalist approach on IP enforcement. For instance, Methodology
for the Development of National Intellectual Property Strategies Tool
3 Benchmarking Indicators Vol 3 suggests explicitly and implicitly,
a maximalist agenda on IP enforcement.
This document advocates for comprehensive border measures covering
all IP going beyond the TRIPS Agreement requirement, which prescribes
border measures only in cases of trademark counterfeit and pirated
copyright goods.
Further, the document advocates for special courts, specialised for
enforcing IP rights. This goes against the letter and spirit
of the Development Agenda. We call upon the Secretariat not to pursue
an IP maximalist agenda on both protection and enforcement of IP rights.
Thank you.
