TWN Info Service on Intellectual Property Issues (June06/01)

30 June 2006

DEVEPLOPMENT MEETING BEGINS; FOD GROUP SUBMITS NEW PAPER

A week-long meeting on a “WIPO Development Agenda” opened at the World Intellectual Property Organisation on Monday to discuss the 111 proposals that have been submitted by Members to date.

This is the second year of discussions on a development agenda for WIPO. It was first launched at the 2004 WIPO General Assembly, mainly through the efforts of the Group of Friends of Development (that comprises of Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela).

In the first year, discussions on a Development Agenda were held in a fora called the Intersessional Intergovernmental Meetings (IIM). Three meetings were held in 2005 However at the 2005 GA, as a compromise due to resistance by some developed countries to the renewal of the IIMs to continue discussions, the Provisional Committee on Proposals related to a WIPO Development Agenda (PCDA) was formed, to continue discussions on the WIPO DA. 

The week long meeting is the second session of the PCDA. The first session was held in February.

More information on the WIPO Development Agenda can be obtained from our website at http://www.twnside.org.sg/IP_wipo.htm

Below is a report on a paper (PCDA/2/2, dated 23 June) by the FOD in the form of a draft Decision which the group had hoped would be the basis discussions during the week and that the Committee would adopt as recommendations to the upcoming General Assembly in September.

It was published in the SUNS #6055 Tuesday 27 June 2006

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DEVEPLOPMENT MEETING BEGINS; FOD GROUP SUBMITS NEW PAPER

Geneva, 26 June (Martin Khor) -- A week-long meeting on a WIPO Development Agenda opened at the World Intellectual Property Organisation on Monday  to discuss the various proposals of members according to the  six clusters of issues.

After a lengthy consultation on procedural matters, it was agreed that the discussion would be on each cluster of issues, which would entail a broad discussion on the cluster, "as broadly as possible", and not to conduct the discussion proposal by proposal, or by whether the proposal enjoys consensus.

This compromise on procedure was to satisfy delegations, especially those belonging to the Group of the Friends of Development (FOD), that wanted to proceed on the basis of a more structured discussion on what concrete decision or recommendations to send on to the WIPO General Assembly that meets in September.

The meeting is the second session of the Provisional Committee on Proposals related to a WIPO Development Agenda (PCDA). The first session was held in February.

This is the second year of discussions on a development agenda for WIPO after the Development Agenda initiative was launched, mainly through the efforts of the FOD, at the WIPO General Assembly in September 2004.

The FOD comprises 14 developing countries: Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela. Though not members of the FOD, many other developing countries also support a Development Agenda in WIPO.

Three inter-sessional meetings (in what was dubbed as the IIM process) were held up to the General Assembly in September 2005, and the Assembly then established the PCDA to carry forward the process.

This week's meeting is scheduled to come up with recommendations to the next General Assembly on how to carry the Development Agenda work forward.

The FOD has meanwhile submitted a paper (PCDA/2/2, dated 23 June) in the form of a draft Decision which the group had hoped would be the basis for this week's discussions. The paper summarises many proposals in earlier FOD papers, but this time in the form of a Decision that the Committee sends on as recommendations to the General Assembly.

The FOD paper also incorporates some proposals made earlier by other delegations, especially by the African Group, and by a group led by Bahrain, while FOD also excluded some of its own proposals. Even some proposals of the US were included. This was an effort to make the draft Decision inclusive, said Brazil at today's meeting, explaining the nature of the FOD paper.

In a pre-meeting consultation with coordinators of some regional groupings last Friday (23 June), the chair of the PCDA, Ambassador Rigoberto Gauto Vielman of Paraguay suggested that the 111 proposals put forward so far by members be placed into three categories: those that enjoyed consensus, those where agreement was possible after further work, and those where consensus would be difficult. The implication was that work would then focus first on the first category.

The 111 proposals have been listed under six clusters in an Annex in the report of the PCDA's first session on 20-24 February 2006 (document PCDA/1/6 Prov. 2). The clusters are (A) technical assistance and capacity building; (B) norm-setting, flexibilities, public policy and public domain; ( C) technology transfer, ICT and access to knowledge; (D) assessments, evaluation and impact studies; (E) institutional matters including mandate and governance; and (F) other issues.

The Chair's proposed procedure (which had in the first session also been suggested by some developed countries) was unacceptable to the FOD, which feared that a discussion issue-by-issue would again make the PCDA only a talk shop, without a concrete decision being transferred to the General Assembly. The group also felt that this procedure would focus the discussion on relatively simple matters such as increasing technical assistance, while the more complex proposals to reform WIPO into a more development-oriented organization would be shunted aside on the ground that these did not enjoy nor was it likely to obtain consensus.

With the Chair's proposed procedure failing to win agreement, the whole morning of the first day was spent on finding a compromise. Thus it was agreed that the meeting would not discuss proposal by proposal, but would take each cluster and discuss it "as broadly as possible", said the Chair. Delegations could then suggest draft recommendations, "but we can't prejudge what to do these drafts and the future work," said Rigoberto Gauto Vielman.

Through this procedural decision, the FOD paper on a draft Decision would not be the basis for the meeting's discussion. The developed countries, backed by some developing countries, wanted to avoid the FOD paper being the basis.

On the other hand, the FOD is able to introduce the specific proposals in its latest paper during the discussions cluster by cluster.

The FOD paper, in an introduction, explains the sources of the proposals (including how some of the proposals by Africa Group, Bahrain, the US, etc. had been incorporated in the various sections).

In a general section, the paper says that the PCDA recommends to the WIPO General Assembly:

·        To initiate a process for the adoption of a high-level declaration on intellectual property and development;

·        To reaffirm the commitment of WIPO Member States with the principles and goals of the UN system - mainly economic and social development - and with the mandate of WIPO as a UN-specialized agency by adopting the following declaration: "Nothing in the 1967 WIPO Convention prevents WIPO from undertaking any initiative to consider various models of innovation other than intellectual property. Attempts to pursue upward harmonization of laws on IP protection, without proper consideration of the potential social and economic costs for developing countries and LDCs, runs contrary to WIPO s UN mandate".

The FOD paper then has the PCDA recommend that the General Assembly adopt several principles on Technical Assistance (TA): that it be development oriented; the programmes should be coherent with relevant international instruments and national development policies; they should have an integrated approach, to include matters related to competition policy and related regulatory regimes; the provision of TA should be neutral; the activities should ensure that IP laws are tailored-made and demand-driven; the WIPO s TA staff and consultants should be fully independent; the programmes should be continually evaluated independently; and transparency should be ensured;

The General Assembly would also set up guidelines and disciplines on TA to ensure:

• transparency, by making available information about design, delivery, cost, financing and implementation of TA programs;

• the development of the technical capacity of countries to fully use in-built flexibilities existing in the intellectual property international system to advance national pro-development policies and, in particular, the pro-development provisions of the TRIPS Agreement, and the Doha Declaration on the TRIPS Agreement and Public Health;

• that the relationship between intellectual property and competition law are fully explored to ensure an integrated approach;

• strengthening of national capacity for the protection of local creations, innovations and inventions in order to develop national scientific and technological infrastructure;

• independence and transparency in cooperation programs; independence of providers; continuous evaluation to ensure its effectiveness;

• that the social costs of intellectual property protection and enforcement are maintained at a minimum in developing countries; the implementation of international obligations in an administratively sustainable way, that does not overburden scarce national resources.

Other proposals on TA are for the promotion of model approaches, overseen by Member states, on how to implement the relevant provisions on anti-competitive practices, and flexibilities and limitations of the TRIPS and WIPO's agreements; and setting up financial mechanisms to promote development-friendly technical assistance.

Regarding WIPO's norm-setting activities, the FOD paper proposes that the WIPO General Assembly adopt the following principles, guidelines and treaty provisions to ensure that WIPO norm-setting activities:

• are based on Member- driven and transparent work plan and strategic vision;

• take into account the differences in the level of economic, social and technological development among Members and do not promote harmonization initiatives detrimental to developing and least-developed countries;

• preserve and protect a robust and lively public domain, while safeguarding exceptions and limitations;

• reflect not only the interests of developed countries and IP rights holders, but also those of developing countries, the public stakeholders and civil society;

• are fully compatible with and actively support other international instruments that reflect and advance development objectives, in particular Human Rights international instruments;

• provide developing countries with policy space commensurate to their development needs and requirements through flexibilities, exceptions, limitations and the provision of protection adequate to the level of development and national conditions of each country;

• are preceded and effectively guided by debates and public hearings, with open participation by all member-countries and all stakeholders, with a view to assessing potential impacts as well as the desirability of new norm-setting activities;

• put in place a system, overseen by member-countries, to ensure continuous objective evaluation of the impact and costs, especially for developing countries, of higher standards of IPR protection;

• provide mechanisms designed to curb anti-competitive IP-related practices.

The General Assembly would also agree on the inclusion in treaties and norms provisions on, inter alia: (a) objectives and principles; (b) safeguard of national implementation of intellectual property rules; ( c) against anti-competitive practices and abuse of monopoly rights; (d) promotion of transfer of technology; (e) longer compliance periods for developing countries; (e) flexibilities and "policy space" for the pursuit of public policies; (f) exceptions and limitations.

There would also be a decision to set up, within WIPO, a mechanism to carry out, on a Member-driven basis, independent and evidence-based "Development Impact Assessments" with respect to norm-setting and technical assistance activities, including by means of compilation of empirical evidence, analysis of cost-benefit of norms and the examination of alternatives within and outside the IP system.

Said the paper: "These endeavours should precede and guide any norm-setting activity within WIPO and should ensure a continuous evaluation of the actual impact and costs of treaties and norms that have been adopted, so that the objectives pursued by means of new treaties or the revision of existing ones can be achieved always under the lowest possible levels of monopoly of knowledge. In the case of technical assistance and capacity building indicators and benchmarks for evaluation should be established."

The following draft decisions are also proposed by the paper:

• To separate the norm-setting functions of the WIPO Secretariat from those of technical assistance;

• To promote and develop alternative innovation-protection models and open collaboratively projects such as Free and Open Source Software and Creative Commons;

• To launch negotiations on a Treaty on Access to Knowledge and Technology;

• To initiate negotiations on a multilateral agreement where signatories would place into the public domain, or find other means of sharing at affordable cost, the results of publicly funded research;

On technology issues, the paper also proposes a decision to develop, adopt and promote development-friendly principles, guidelines and disciplines on transfer of technology that (a) enable a dynamic technological cooperation between developed and developing countries; (b) enable developing countries to have access to technologies from developed countries; ( c) mainstream transfer of technology in WIPO's norm-setting activities; and (d) set up multilateral supportive measures for the promotion and dissemination of technology.

Other proposed technology-related decisions are to establish a new body, within WIPO, for promoting transfer of technology; and to formulate recommendations on policies and measures industrialized countries could adopt for promoting transfer and dissemination of technology to developing countries.

Finally, the FOD paper also proposes other decisions:

• To devise a mechanism whereby countries affected by anti-competitive practices request developed countries authorities to undertake enforcement actions against firms headquartered or located in their jurisdictions and to promote measures to curb and combat IP-related anti-competitive practices, and abuse or misuse of rights by rights holders;

• To ensure wider participation of public interest groups in WIPO discussions, adopting UN criteria regarding NGO's terminology, acceptance and accreditation;

• To maintain the mandate of WIPO's Advisory Committee on Enforcement within the limits of a forum for exchange of information on national experience, excluding norm-setting activities. The ACE agenda of discussion should also tackle how best to ensure the implementation of those provisions in existing IP treaties, including TRIPS, that provide for exceptions and limitations to the rights conferred;

• To renew the process of the PCDA to further discuss and address all issues related to a Development Agenda work-program for WIPO that may not have been the subject of decision during the 2006 General-Assembly. Three meetings will be organized until July 2007, which shall report back and formulate recommendations to the 2007 General Assembly on actions to be taken with regard to the pending proposals;

• To take fully into account the interests of developing countries in the process of approval of the program and budget of the WIPO and implement the decision of the 41st General Assembly of WIPO: "(...) adjustments to the Program and Budget for 2006-2007 shall be carried out in order to take into account any programmatic and budgetary implications resulting from on-going discussions on the WIPO Development Agenda and other issues".