TWN Info Service on Intellectual Property Issues (June06/02)

30 June 2006

DIFFERENCE RE-EMERGE ON DEVEOPMENT PROPOSALS

Differences amongst World Intellectual Property Organisation (WIPO)  members became evident again as they discussed which issues to include  for further work on a WIPO development agenda.

Below is a report on the discussion that took place on Monday afternoon and Tuesday morning on two out of the six clusters of proposals that have been  compiled - (1) technical assistance (TA) and capacity building and (2) norm-setting, flexibilities, public policy and public domain.

It was published in the SUNS #6056 Wednesday 28 June 2006

With best wishes
Sangeeta Shashikant
Third World Network
36 Rue de Lausanne
1201 Geneva
Tel: + 41 (0) 22 908 3550
Fax : + 41 (0) 22 908 3551

DIFFERENCE RE-EMERGE ON DEVEOPMENT PROPOSALS

Geneva, 27 June (Riaz K. Tayob) -- Differences amongst World Intellectual Property Organisation (WIPO) members became evident again as they discussed which issues to include for further work on a WIPO development agenda.

The discussion took place Monday afternoon and Tuesday morning on two out of the six clusters of proposals that have been compiled - (1) technical assistance (TA) and capacity building and (2) norm-setting, flexibilities, public policy and public domain.

The substantive discussions took place after a procedural wrangle was sorted out on how work should be conducted at this second session of the Provisional Committee on Proposals related to a WIPO Development Agenda (PCDA), which is scheduled to come up with recommendations to WIPO's General Assembly in September.

On the table are two main documents: a list of 111 proposals placed in six clusters (which is an Annex in the report of the first PCDA session in February); and a proposal from the Group of Friends of Development (FOD) in the form of a Draft Decision of the PCDA.

A proposal by the PCDA Chair, Ambassador Rigoberto Gauto Vielman of Paraguay, to classify the 111 proposals into baskets of those enjoying consensus, those where consensus was possible, and those where consensus would be difficult to obtain, was not acceptable to the FOD.

As a compromise, it was agreed that the meeting would make use of the list and discuss cluster by cluster, and in so doing the proposals of the FOD and other relevant proposals can be brought up.

During the discussions on the TA and norm-setting clusters, the clear differences between groups of members that had developed previously were again evident.

While developing countries in the FOD reiterated their proposals for wide ranging reform of WIPO to be more development orientated, developed countries, especially the United States, opposed the inclusion of many proposals, including those that would require reforms in WIPO.

Meanwhile, a few developing countries, like Mexico, also appeared to be opposed to some of the more important reforms put forward by the FOD group.

The basis for the discussions was the list of issues (in 6 clusters) annexed to the report of the first PCDA session (PCDA/1/6/ Prov. 2). As the discussions proceeded the FOD sought to have their proposals (contained in their paper PCDA/2/2) incorporated into the discussions into the future Development Agenda work programme.

The Swiss delegate speaking on behalf of Group B (of developed countries) requested that the discussions be held on an informal basis but Brazil opposed this, saying it was beneficial for all countries and the broadest range of discussions to be on the record.

In the discussion on the first cluster (technical assistance), Brazil presented the FOD's 22 June proposal and explained that it was intended as a synthesis document and reflected not only the proposals of FOD but also that of the Africa Group and other developing countries.

Brazil added that nothing in the 22 June proposal was not contained in previous proposals by developing countries and that some of the earlier FOD proposals had not been included. South Africa supported Brazil's proposals on Cluster A.

India supported the development agenda. On para 8 (that WIPO assist members states set up national IP strategies), it stressed that this assistance should not be prescriptive, and that ownership must rest with national governments. On para 9 (promoting IP culture through academic institutions), India said the IP culture must take account of the public interest. On para 12 (competing in the knowledge economy), India said developing countries needed mechanisms like subsidised access to journals and electronic databases.

Chile said all the proposals were relevant. It also welcomed the FOD paper as an alternative that is useful for working on the text.

The US stated that it could support some of the proposals on TA in the list, but it could not agree to others. The US stated that its objections were made with a view not to exceed the mandate of WIPO.

Among the proposals the US objected to were on the need for TA to be demand-driven and that flexibilities in treaties are taken full advantage of (para 13); to make publicly available all information about design, delivery and implementation of TA programmes (para 15); that TA should cover the use of flexibilities in treaties like TRIPS, and pro-development and anti-competitive elements (paras 13, 26, 32); the need to provide neutral TA based on expressed needs (para 19); to ensure that laws are tailored to each country's level of development and TA should meet the needs of various stakeholders not just right holders (para 20); to mainstreaming the development dimension into all WIPO's substantive and TA work (para 27); TA should contribute to minimising the social costs of IPR protection (para 28); to expand coverage of TA to address competition, abuse of IPRs and technology transfer (para 18).

France indicated limited support for some proposals while stating that further discussion on four proposals was required. Italy recommended that the proposals be further simplified and reserved their rights on a number of important proposals.

Mexico raised a number of points of clarity on the proposals by the FOD and commented on their suitability for WIPO. Mexico regarded the request for neutral TA superfluous stating, "how could it be anything but neutral." It also questioned whether WIPO had the mandate to investigate the "interface between intellectual property rights and competition policies." Regarding the proposed assessment of the social costs of IPR protection, it questioned how this could be done in each country and whether WIPO had the mandate to do so.

In response, Brazil clarified the issues raised by contextualising them. Brazil explained that some of the issues in the 22 June proposal were made by the Africa Group and other countries (e. g Bahrain). Nigeria added that some regions in Africa did not have national IPR offices and only had access to regional bodies. The objective of the proposal was to ensure that regional bodies received similar access to WIPO technical assistance.

In the discussion on the second cluster (norm setting, etc.) Brazil, for the FOD, presented points from their 22 June proposal. Among other points highlighted were that different levels of development of members be taken account of in the attempt at IPR harmonisation; norm setting activities should be member driven with a transparent work plan and vision; there is wider public participation in norm-setting, with a focus on potential impacts and the appropriateness of new norms; to institutionalise a system for continuous evaluation of the impact of higher IPR levels in developing countries; and to provide mechanisms to deal with anti-competitive practices. The importance of the measures was previously explained in documents IM/1/4, 2004 General Assembly WOG/A31/11 and PCDA/1/5.

Brazil intimated that Technical Cooperation was not sufficient unless they took into account the varying levels of development of members and their development objectives, including the Millennium Development Goals.

Brazil expressed difficulties with paragraph 5 referring to IPRs and their relation to economic growth. Brazil and Iran expressed reservations on paragraph 6 on piracy and counterfeiting stating that this should be dealt with in the appropriate committee dealing with enforcement.

China concurred on this point and questioned the methodology used to establish the statistics on piracy and counterfeiting. China stressed that in norm setting, it was important to take full account of the level of development in developing countries and to balance the interests of all sides.

South Africa, Argentina, Uruguay, Paraguay, Iran and Bolivia supported the proposal by Brazil for the FOD. Uruguay, in supporting the FOD proposal, highlighted the importance of the link between Human Rights and IPRs, saying it was important for Human Rights to be dealt with in all fora. Iran said that norm setting should not just be about implementing commitments but also about members deriving benefits from the system.

Bolivia, while supporting the FOD proposal, said that norm setting should be done in the interest of member states. Proposals on the public domain were of particular interest to Bolivia.

Argentina supported Brazil's intervention and stated that it was necessary to regroup proposals that were similar and to remove duplication. The FOD proposal was an attempt at doing this because the proposals by other countries was included in the document.

India supported the development work programme in WIPO and lay particular emphasis on the protection of Traditional Knowledge Systems (TKS), the rights and obligations of members to the Convention on Biodiversity (CBD) to ensure that local communities benefit and to prevent the misappropriation of Traditional Knowledge.

It added that it was important for countries to enjoy the right to the full enjoyment of TRIPS flexibilities and that Open Source and Collaborative projects to develop public goods were important especially to give consumers the choice of a non-proprietary system. In ICTs, open standards provided impetus for technology transfer and access to knowledge.

The US stated that it was unwilling to support a large number of the proposals, including particularly paras 1 and 3 (WIPO providing advice on TRIPS flexibilities and how developing countries can ensure access to essential medicines and food, access to knowledge and technology; para 2 (that WIPO adopt a binding instrument to protect genetic resources, traditional knowledge and folklore); para 4 (improving participation of civil society and other stakeholders); para 9 (analysis and discussion of incentives promoting creativity, innovation and technology transfer in addition to the IPR system); para 10 (adoption of development friendly guidelines and principles for norm setting activities); para 19 (special and differential treatment for developing countries); para 20 (policy space for developing countries); para 21 (that norm setting activities identify and maintain a robust public domain in WIPO member states); para 24 (establishment of a treaty on Access to Knowledge); para 25 (establishment of a framework to deal with substantive law on anti-competitive practices).

Italy opposed the proposal on WIPO adopting an agreement whether binding or non-binding on genetic resources. Switzerland for Group B said the financial implications in a number of recommendations need to be looked at more closely before consensus could be reached.

Austria, for the European Community, also had reservations about WIPO examining the use of flexibilities of the TRIPS agreement. It said the EU did not support the proposals on increased participation by Civil Society, or development friendly guidelines and principles for norm setting. On protecting the public domain, the EU requested further clarification and expressed a reservation.

Mexico asked whether questions of Access to Technology and Knowledge were not an invasion of the mandates of UNESCO and the Science and Technology division of UNCTAD. It failed to understand measures needed to ensure access to the public domain and on the protection of development flexibilities in the TRIPS and other agreements.

Columbia also expressed a problem with protecting the public domain, particularly within WIPO's norm setting activities. On seeking different mechanisms to support creativity and innovation (para 9) and the examination of different systems of fostering innovation (para 22), Columbia asserted this was not part of WIPO and therefore not relevant. Mexico endorsed Columbia's view on paragraph 22 and added that the debate on open source software is misplaced and other measures can be used to help developing countries become competitive.

Chile spoke in favour of enlarging the public domain. It stated that it is important not to "put a cage on the public domain" especially when the line between what is protected and in the public domain is hazy. While the rights of owners of IPRs has increased there is a need to give users in society increased protection especially because the there has been unilateral retrospective increases on protecting patent holders.

It added that strengthening national offices with better information will increase the quality of patents. Flexibilities for IPRs in other agreements should however be dealt with in the WTO and not within WIPO.

Civil Society groups distributed a statement at the meeting indicating support for the FOD proposals. The statement was supported by over 130 organisations from all over the world.

The statement supported the incorporation of a development dimension to the work of WIPO. A treaty on access to knowledge and technology, the establishment of an independent evaluation and research office, adoption of principles and guidelines for technical assistance were also endorsed.

The CSOs also called for a change in WIPO norms and practices on the costs and benefits of IPRs and their role in development, challenged the "one size fits all approach" of WIPO, stressed the need to protect flexibilities and to promote a more transparent, member driven participation with wider public engagement.

The Chairperson indicated that while these discussions were taking place, the output of these sessions was not yet decided. He indicated that he would provide "something for consideration" by the meeting that could provide some elements for a document to submit to the WIPO General Assembly.