TWN Info Service on Intellectual Property Issues (Feb07/12)

27 February 2007

The news report below details some of the discussions that took place on Technology Transfer, Information and Communication Technology and Access to Knowledge (Cluster C); Evaluation and Impact Studies (Cluster D); Institutional Matters including Mandate and Governance (Cluster E); and Other Issues (Cluster F) last week (on Wednesday and Thursday) during the meeting on Development Agenda in WIPO.

During these discussions many developed countries would only support many issues "in principle" but were reluctant to agree to binding commitments on measures regarding anti-competitive practices and technology transfer proposed by some developing countries.

Intensive informal consultations continued on Thursday in WIPO in an attempt by member states to come up with a first set of agreed proposals for a Development Agenda.

Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: +41 (0) 22 908 3551
Email: ssangeeta@myjaring.net

INTENSIVE CONSULTATIONS TO NARROW DIVISIONS ON "DEVELOPMENT AGENDA”

SUNS #6197 Friday 23 February 2007

Geneva, 22 Feb. (Sangeeta Shashikant and Riaz K. Tayob) -- Intensive informal consultations took place on Wednesday and Thursday in WIPO in an attempt by member states to come up with a first set of agreed proposals for a Development Agenda.

The exercise is aimed at processing an initial 40 proposals (known as Annex A) into an agreed smaller number. The negotiations are taking place at the WIPO's Provisional Committee on Proposals related to the Development Agenda (PCDA). The session ends Friday.

The consultations intensified today, with the Chair, Ambassador Trevor Clarke of Barbados, conducting informal meetings with regional coordinators on different clusters of issues, with plenary sessions also being held to update all delegates.

Early on Wednesday, Clarke identified "Friends of the Chair" to facilitate the process on the different clusters, with the African Group, Kyrgyz Republic, the Asian Group and China, Poland, and Group B (led by Italy) taking the lead on various clusters.

The informal consultations are expected to consolidate proposals and narrow the differences among members.  Proposals are to be categorised according to those that are actionable and those that contain general principles/objectives, and also according to where there is agreement, where there are gaps and where there is complete disagreement. The recommendations are to be sent to the WIPO General Assembly.

In open discussions on Wednesday, many developed countries would only support many issues "in principle" but were reluctant to agree to binding commitments on measures regarding anti-competitive practices and technology transfer proposed by some developing countries.

One of the main proposals called for the exploration of policies, initiatives and reforms necessary to ensure the transfer and dissemination of technology to the benefit of developing countries.

Germany, for the European Community, said that technology transfer is primarily a matter involving the private sector that owns the technology and the owners should be "encouraged". Canada and Switzerland agreed, adding that it was difficult for it to be an obligation. The US indicated that it would have a problem with mandatory language for the proposal.

Many developing countries including the Group of Friends of Development spoke in favour of this proposal. South Africa said that the technology transfer promised under the TRIPS Agreement had not materialised.

Another proposal called for the promotion of measures that will help countries combat intellectual property related anti-competitive measures. These measures include sanctions to prevent the abuse of the monopoly rights through intellectual property.

Although such measures are commonly practised in the developed countries, many of these countries expressed strong objections as a proposal of the Development Agenda.

Italy, on behalf of Group B (comprising developed countries), said that it had problems with the definition of "anti-competitive practices", adding that aspects of anti-competition fall within the domain of anti-trust authorities and as such the proposal goes "beyond intellectual property rights".

Developing countries (South Africa, Chile, Iran, China, Pakistan, Uruguay and Brazil) strongly supported the proposal. South Africa recalled that dealing with "anti-competitive behaviour" was an issue under the WTO TRIPS agreement, adding that measures that could be taken include the accounting of practices at national or regional levels such as in the EU.

Consumers International, supporting the proposal as an "actionable" item, said that as negotiations in WIPO and other multilateral and bilateral fora seek new IPR norms and place more obligations on countries to enforce those rights, it is important to use competition policy to address problems that harm consumers.

It asked WIPO to collect information on the country experiences where competition laws have been used to remedy anti-competitive practices and to help Members to deepen understanding of their rights and obligations under TRIPS (Article 40) in cases involving disputes over anti-competitive practices in the licensing of IPRs when those practices involve actions in more than one country.

Third World Network, also supporting the proposal, referred to the US Federal Trade Commission report of 2003, which states that "Competition and patents stand out among the federal policies that influence innovation. Both competition and patent policy can foster innovation, but each requires a proper balance with the other to do so".

Another North-South division emerged on the proposal to devise innovative ways and means, including fostering of transfer of technology, to enable Small and Medium Enterprises to take advantage of the flexibilities as provided by relevant international agreements.

The Africa Group, Chile, Brazil, Pakistan and Uruguay supported this proposal, but it was opposed by the US on the grounds that it advocates a general policy of taking advantage of "flexibilities".

Switzerland said the proposal was contradictory with the demands to foster transfer of technology. Several delegates and NGOs were puzzled by this Swiss position, as it is widely recognised that the use of "flexibilities" within the IP system (in the context of the TRIPS Agreement) can facilitate access to technology.

Regarding the topic Evaluation and Impact Studies (Cluster D), Brazil said it supported most of the proposals except for the proposal to conduct a study in developing and least developed countries on obstacles to intellectual property protection in the informal sector.

The proposals in this cluster call for the WIPO to develop effective review and evaluation mechanisms for its development orientated activities; undertake studies to demonstrate the economic, social and cultural impact of the use of intellectual property; deepen analysis of the implications and benefits of the rich and accessible public domain; to evaluate its technical assistance program for effectiveness; and to establish benchmarks and indicators for the evaluation of technical assistance.

Brazil said that these proposals were important as evaluation and assessment has a direct bearing on Technical Assistance. Argentina, Uruguay, Iran and the Africa Group also expressed support for various proposals in the cluster.

However, Italy, on behalf of Group B, said that the proposal needed to be expressed differently, as it had a problem with regard to "public domain". WIPO should find a way to better disseminate the knowledge of IP that has fallen into the public domain.

Several NGOs spoke very strongly in favour of this proposal. The Library Copyright Alliance, the International Federation of Library Associations, and eIFL: Electronic Information for Libraries clarified the meaning of "public domain" as "works that either never have been copyrighted or that are no longer within the term of protection under the applicable intellectual property laws."

Libraries all over the world are working to save - including through digitization - older, and often endangered, materials that are in the public domain and these efforts are crucial in preserving our history and cultural heritage for future generations, they said.

Access to the public domain fosters learning, innovation and creation of new works. Those new works may themselves then be subject to new rights, but that is a benefit, not a burden of a rich public domain.

Consumers International said that WIPO could highlight cases on the issue, including the decision by several countries to support activities to place the human genome in the public domain, or how the World Wide Web Consortium and other bodies have created technologies for the Internet that are free from intellectual property claims.

By placing some data and technology into the public domain, there was a more competitive environment for the next generation of inventions and services, including inventions and works that are fully protected by patents and copyrights, added Consumers International. It also encouraged a deeper understanding of the relationship between the public domain and IPRs.

On the proposal "to continuously evaluate WIPO's technical assistance (TA) programs and activities to ensure their effectiveness", which enjoyed the general support of developing countries, the International Federation of Library Associations and eIFL: Electronic Information for Libraries said that a continuous evaluation of TA is necessary to ensure "their quality and neutrality".

They gave an example of the WIPO Secretariat using a draft copyright law (previously available on the WIPO website) as a tool to advise Member States.

The draft law defined communication to the public for transmission, by wire or wireless means, which was narrower than the definition in the WIPO copyright treaty.

The draft law limits the making available to the public to "persons outside the normal circle of a family and its closest social acquaintances". As a result, the WIPO draft law limits, and therefore inhibits, the uses of new wireless technologies which should be encouraged in developing countries.

Such a narrow interpretation of transmission by wire or wireless means cannot be found in the copyright law of any major industrialised nation, including the US and the EU Member States. But the WIPO Secretariat provided this advice to developing countries, with the result that it can be found in the copyright laws of numerous countries including Cambodia (2003), Swaziland (2004) and Ghana (2005).

The NGOs said that the Secretariat informed the meeting that legislative advice is undertaken entirely "in house".  However, it is incomprehensible why the Secretariat would choose to unnecessarily create such a narrow definition.

They thus supported the proposal for a continuous evaluation of WIPO's technical assistance programs as this would ensure that such aberrations would be identified and rectified at a much earlier stage, before it is too late for some countries.

There was also a discussion on Cluster E (Institutional Matters including Mandate and Governance) which includes proposals to address through a legal and regulatory framework the brain drain in Africa; that WIPO intensify its cooperation with other UN agencies and WTO to strengthen coordination and harmonization; to conduct a stocktaking of current WIPO development cooperation activities; to undertake measures to ensure wider participation of civil society and public interest groups in WIPO's activities; and to adopt UN system criteria for NGO acceptance and accreditation.

Brazil cautioned that WIPO's formal links to other specialized agencies such as the Food and Agriculture Organization is very sensitive as it will have a bearing on the application of intellectual property to food worldwide, thus it should be discussed in depth with the membership of this body.

Cluster F contains only one proposal, i.e. "to approach intellectual property enforcement in the context of broader societal interests and development-related concerns, in accordance with Article 7 of the TRIPS agreement".

Article 7 states that 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.

Italy expressed concerns about the proposal, adding that Members cannot make a reference to the TRIPS agreement, as each treaty should be interpreted according to its own content, thus in WIPO the context is only the WIPO agreements.

Brazil stressed the importance of the proposal, adding that there is already a great deal of cross-referencing of treaties, as most Members already deal with a set of interdependent agreements, thus it could not understand the intervention from Italy.