TWN Info Service on Intellectual Property Issues (June 07/06)

21 June 2007


Please find below the final analysis on the overall outcome of the WIPO Development Agenda meeting held last week in WIPO and reproduced here with permission.

Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: +41 (0) 22 908 3551

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MEETING AGREES TO 45 PROPOSALS AND NEW DEVELOPMENT
COMMITTEE

SUNS #6274 Tuesday 19 June 2007


Geneva, 18 June (Sangeeta Shashikant) -- A meeting of the WIPO Development Agenda ended on 15 June with a decision to set up a new WIPO Committee on "Development and IP", and to transmit 45 agreed proposals to the WIPO General Assembly for adoption.

The new Committee is the centerpiece of the follow-up process in the next phase of the Development Agenda initiative, which will involve implementation of the proposals, and monitoring and assessing of the implementation. The Committee is also mandated to discuss IP and development-related issues.

The decision, which will have to be adopted by the WIPO General Assembly later this year, was taken after an intense week of negotiations in the fourth session of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA).

The decision marks the close of the first phase of the Development Agenda initiative spearheaded by the Group of Friends of Development (coordinated by Argentina and Brazil) and supported by many other countries.

The initiative began in September 2004 and was met initially with hostility by developed countries in general, and meetings of the Development Agenda have been heated and tense.

However, as it became clear that the developing countries were determined to pursue their intention to reform WIPO to make its norms and activities more development-oriented in line with its functions as a United Nations agency, the developed countries in the end engaged in the negotiations on the proposals.

There were in all 111 proposals put forward. Eventually, these were narrowed down to the 45 proposals that the PCDA will recommend to the General Assembly for adoption. Of the 45 agreed proposals, 21 were decided on during last week's negotiations, while 24 had been adopted at the previous PCDA meeting in February.

Last week's meeting comprised mainly of negotiations carried out in a small informal group of about 30 members, which represented mainly regional groupings, while the majority of members were left waiting for the outcome.

The small-group meeting was termed by many as the "Green Room", in reference to the WTO's controversial practice in which only a few members are called for meetings where key decisions are taken, and other members are then persuaded to "join in the consensus."

The small-group meeting was described by some delegates who participated as being "difficult" although not as acrimonious as expected.

The 45 proposals capture many of the ideas contained in the 111 original proposals. As part of the compromise, developing countries had to accept the dilution of many of their proposals on the insistence of developed countries, as well as the deletion altogether of some of the most important proposals.

But generally, diplomats of many developing countries were pleased with the outcome, as there is still quite a lot of substance in the agreed proposals on which to base a reform programme oriented to development objectives. They also believe that in the implementation process, specifics can be put into proposals that are presently worded in a more general way.

On 15 June night, at the final formal plenary session, the PCDA decided to make the following recommendations to the 2007 WIPO General Assembly:

-- To adopt the recommendations for action in the 45 agreed proposals.

-- To immediately implement the recommendations contained in a list to be submitted by the Chair of the PCDA. [This refers to an understanding that the Chair, Ambassador Trevor Clarke of Barbados, will consult members between June and September to identify proposals which can be implemented immediately by WIPO after the General Assembly.]

-- To immediately establish a Committee on Development and IP to: (a) develop a work-program for implementation of the adopted recommendations; (b) monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose it shall coordinate with relevant WIPO bodies; (c) discuss IP and development-related issues as agreed by the Committee, as well as those decided by the General Assembly.

The Committee will be composed of WIPO Member States and open to the participation of all accredited intergovernmental and non-governmental organizations. It will consider and adopt rules of procedure based on the WIPO General Rules of Procedure at its first meeting, which will be convened in the first half of 2008. The number and duration of meetings of the Committee are to be decided by the General Assembly.

The PCDA also recommended that for the first meeting of the new Committee, the present Chair of the PCDA would prepare initial working documents, including a draft work program in consultation with Member States and the Secretariat. The draft work program should address, inter alia, the financial and human resources requirements for inclusion in WIPO's budgetary planning process.

The Committee will report and may make recommendations annually to the General Assembly. The mandate of the PCDA will not be renewed and the PCIPD (Permanent Committee on Cooperation for Development Related to Intellectual Property) shall cease to exist.

The 45 agreed proposals are categorized in 6 clusters: Cluster A is on Technical Assistance and Capacity Building; Cluster B on norm setting, flexibilities, public policy and public domain; Cluster C on Technology transfer, information and communication technology and access to knowledge; Cluster D on Assessments, Evaluation and Impact Studies; Cluster E on Institutional matters including mandate and governance; and Cluster F on Other Issues.

On 11-13 June, the informal small group finalized proposals for Cluster A and B (See reports on these in SUNS #6270 dated 13 June 2007, and SUNS #6272 dated 15 June 2007). Proposals in the remaining clusters were finalized on 14-15 June.

The agreed proposals on Cluster C (Technology transfer) are:

-- To include discussions on IP-related technology transfer issues within the mandate of an appropriate WIPO body.

-- WIPO should cooperate with other intergovernmental organizations to provide to developing countries, including LDCs, upon request, advice on how to gain access to and make use of IP-related information on technology, particularly in areas of special interest to the requesting parties.

-- To undertake initiatives agreed by Member States which contribute to transfer of technology to developing countries, such as requesting WIPO to facilitate better access to publicly available patent information.

-- To have within WIPO opportunity for exchange of national and regional experiences and information on the links between IP rights and competition policies.

Originally, there had been 14 proposals in this Cluster in a list termed "Annex B". These had already been reduced to five proposals by the Asian Group that coordinated the work on this Cluster, and eventually this was further reduced to the above four proposals.

During the negotiations, the African Group insisted on incorporating a proposal requiring the development of a list of essential technologies that are necessary to meet development needs as a method of operationalising technology transfer effectively. However, Group B (comprising developd countries) did not accept this proposal.

As a compromise, it was agreed that WIPO should cooperate with other organizations to advise developing countries on how to gain access to and make use of "IP-related information on technology."

Specific original proposals of the Group of Friends of Development and the Africa Group contained in Annex B do not feature at all in the list of agreed proposals, but they could re-emerge in the new Committee during discussion on implementation.

These include proposals to adopt development-friendly principles and guidelines on transfer of technology; specific measures to ensure transfer of technology; to devise a mechanism whereby countries affected by anti-competitive practices request developed countries' authorities to undertake enforcement actions against firms headquarted in their jurisdictions; to establish a WIPO Standing Committee on IP and Technology and a dedicated program on these issues including related competition policies; and to negotiate a multilateral agreement where signatories would place into public domain, or find other means of sharing at modest cost, the results of largely public funded research.

On Cluster D (Assessments, Evaluation, Impact Studies), the following three proposals were agreed on:

-- To exchange experiences on open collaborative projects such as the Human Genome Project as well as on IP models.

-- Upon request and as directed by Member States, WIPO may conduct studies on the protection of intellectual property, to identify the possible links and impacts between IP and development.

-- To strengthen WIPO's capacity to perform objective assessments of the impact of the organization's activities on development.

On the first proposal, Group B (in particular, the US) had long argued that WIPO, being an organization only to promote IP, should not be asked to look at open collaborative models.
In July 2003, WIPO was asked by several dozen distinguished scientists, academics, technologists, open-source advocates, consumer advocates, librarians, industry representatives and economists worldwide to hold a meeting to study the importance and implications of new open collaborative projects to create public goods. Microsoft and the US Government opposed the meeting, which was never held.

Lois Boland, director of international relations for the US Patent and Trademark Office, said at that time that open-source software runs counter to the mission of WIPO, which is to promote intellectual-property rights. According to her: "To hold a meeting which has as its purpose to disclaim or waive such rights seems to be contrary to the goals of WIPO."

Thus, the agreement on this proposal can be seen as opening new ground, as for the first time, WIPO Members have acknowledged a discussion on "open collaborative models" to be part of WIPO's mandate.

On the third proposal, Group B refused during the meeting to accept any mention of specifics.

Among the original proposals of the Group of Friends of Development contained in Annex B were "to establish an independent development impact assessments with respect to technical assistance, technology transfer and norm setting" and "to establish, through a member-driven process, an independent Evaluation and Research Office (WERO) that would be responsible for, inter alia, evaluation of all WIPO's programs and activities and carrying out Development Impact Assessments' in norm setting activities and technical cooperation". These specific proposals were not accepted.

However, the third proposal, although couched in general terms, recognizes the need to perform "objective" assessments of the impact of the organization's activities (which would include technical assistance, technology transfer and norm setting) on development and it leaves avenue open for specific proposals during the follow-up discussion on "implementation".

In relation to Cluster E (Institutional matters), the following proposals were agreed on:

-- To consider how to improve WIPO's role in finding partners to fund and execute projects for IP-related assistance in a transparent and member-driven process and without prejudice to ongoing WIP0 activities.

-- In accordance with WIPO's member-driven nature as a United Nations Specialized Agency, formal and informal meetings or consultations relating to norm-setting activities in WIPO, organized by the International Bureau, upon request of the Member States, should be held primarily in Geneva, in a manner open and transparent to all Members. Where such meetings are to take place outside of Geneva, Member States shall be informed through official channels, well in advance, and consulted on the draft agenda and program.
These agreed proposals are only a pale shadow of the much more ambitious set of proposals put forward by the Group of Friends of Development and contained in Annex B. The original proposals included amending the WIPO Convention to bring it in line with WIPO's mandate as a UN specialized agency and to adopt a high level Declaration on IP and Development. These were deleted during the negotiations.

The original proposal on amending the WIPO Convention had been considered very important in view of the stance often taken by Group B that WIPO's mandate is confined to the promotion of IPRs and setting IP standards. It was because of this stance that Group B had initially resisted the Development Agenda initiative.

The Group of Friends of Development had wanted an amendment to the WIPO Convention so that development goals would be put more explicitly in WIPO's mandate, in line with other UN agencies.

Although the original proposal has not been accepted, some observers argue that the past two years of discussions on the WIPO Development Agenda and the 45 proposals recommended for adoption by the PCDA meeting has significantly enlarged WIPO's mandate beyond just promoting and setting standards on IP.

During the course of the week's negotiations, several proposals of Group B were also dropped. The developed countries had proposed the compilation of "best practices" of Member States on the development of creative industries and attracting foreign investment and technologies.

This proposal was withdrawn, as countries questioned which standard would be considered "best practices", as countries are at different levels of development and "one size would not fit" all countries.

Another Group B proposal that was dropped was "increasing the understanding of the adverse effect of counterfeiting and piracy on economic development, through the WIPO Advisory Committee on Enforcement (ACE), conduct analyses of the relationship between high rates of counterfeiting and intellectual property, piracy and technology transfer, foreign direct investment and economic growth". This was deleted after the African Group sought to include "bio-piracy" as part of this proposal.

A draft report of this PCDA meeting will be sent to Member States by 16 July and a resumed session of the PCDA will take place on 4 September to adopt the report.