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WIPO Beijing summit draft becoming controversial

Geneva,18 Feb (Chakravarthi Raghavan) - The Bureau of the World Intellectual Property Organization (WIPO) is to prepare a revised draft for a possible declaration for a summit meeting on ‘Intellectual Property and the Knowledge Economy’ at Beijing (24-26 April), in the light of some critical comments from the regional groups and members of the developing world at a second preparatory consultation meeting this week.

The consultations and responses of developing countries suggest that what had been envisaged as a meeting, jointly by WIPO and China, to raise awareness of intellectual property questions and as a tool for development is becoming controversial.

Developing countries, in their group and individual responses and reactions, view some of the phrases and wording of preambular paragraphs in the draft, as efforts to inject and get endorsement at summit level the idea of harmonization of intellectual property laws and enforcement of these rights.

In opening the discussions at an earlier preparatory meeting, the WIPO Director-General, Dr. Kamil Idris, set the parameters for a possible summit statement or declaration and said it has to be non-controversial, a short political statement and with no hidden agendas. If that be not possible, he is reported to have said, it would be better not to attempt a declaration.

At the second preparatory meeting Monday, the bureau draft got the prompt endorsement of Portugal speaking for the Group B industrialized countries, which said the draft gave an “excellent basis” and could be accepted “as it is.”

The responses from the South - of Pakistan, for the Asian group, Zambia for the African group and Brazil for the GRULAC (Group of Latin American and Caribbean) in effect said that their concerns expressed at an earlier meeting had not been taken into account, and the draft text was “deficient and going in the wrong direction.”

As one of the delegates put it outside the meeting, the TRIPS was smuggled into the Uruguay Round negotiations in 1986 by using a phraseology on need to act against ‘counter-feiting and piracy,’ thus injecting a notion of criminality, and was made into full-fledged negotiations for norms and standards through a GATT secretariat manoeuver at the 1989 mid-term review, and the agreement was rammed down the throats of the developing world by the US threat and use of Sections 301, Special 301 and Super 301, and the Dunkel text and presentation in December 1991, with the stipulation that the text could be reopened for change only by consensus.

This WTO tactic of a chairman’s text, without options, and asking others to get a consensus to change it was now spreading all over, and needs to be resisted.

In the statements and drafts presented by others, Zambia for the African group, and several individual presentations by other developing country delegations, wanted the deletion of a reference in the preambular paragraph to the World Intellectual Property Declaration of 2000 as having been noted with consensus by the WIPO Assemblies. This document along with several others, the Africans and others pointed out, had been submitted simply for being noted by the WIPO Assembly in 2000, and no action or eliciting a consensus had been sought. Making it into a preambular para for a summit declaration would be misplaced.

Also, such a declaration, in preambles or elsewhere, referring to international regimes (the WIPO is a common house for over a score of IPR regimes) or to forthcoming events (ITU organized world summit on information society) would not be appropriate.

The affirmation or recognition that IPR protection promotes investment, technology transfer, job creation etc, are in the nature of claims - with no empirical evidence to back it - and the jury is still out on this issue.

Some of the purple language and phraseology used, like ‘demystifying’ intellectual property may result in mystification of a statutorily granted property right in return for a public purpose - and thus one that can be abridged or varied or withdrawn - if the purpose has not been achieved.

And far from promoting inventiveness and competitivity, there are now increasing signs of inappropriate protection levels resulting in inhibiting invention and limiting competition.

Other comments by delegations underscored the fact that the text was acceptable to the Group B and endorsed by them, and elicited critical comments from the developing countries; this implied that the draft was not very balanced either.

The WIPO bureau is to take account of the views and prepare a new or revised draft.

In a sense the Beijing meet, and the declaration to come out of it (that the host country would want to show success) also comes at a bad moment and timing in the international arena - where the governments of the world, and public opinion are concerned over issues of war and peace, and, as a New York Times analyst has put it, the world’s only super-power is finding itself confronted by another super-power, the world public opinion manifested on the streets - and without a single shot being fired or a single body bag being shipped home.

If by the time the summit meets at Beijing, the US, along with UK goes ahead with its war on Iraq (whether it is endorsed or not by the UN), and even if the attack on Baghdad is quick and ‘successful’ in a regime change and US military occupation, the reactions world-wide will not be propitious for any kind of international summit.

The economic and political consequences, notwithstanding reassuring statements from various international personalities, will not be small or inconsequential.  And if the US also gets bogged down in a prolonged fighting on the ground or subsequent occupation, a summit meeting will be even more troublesome. If the US is forced to await a UN authorization and unable to act before mid-March, there will be further global tensions.

The WIPO initiative and the Summit also come at a time when there is increasing question and challenge, in even mainstream economic literature, about the efficiency and utility (and costs) of such global, one-size-fit-all regimes; and what is viewed as an acceptable balance inside a country between grant of monopoly protection and rights to an IPR holder for a limited time and the public interest served by it, could not be considered applicable across the world without challenge.

This is partly due to the fact of the awareness in civil society groups and parts of governments (not merely of trade, but health, agriculture and a host of other sectors), legislative bodies, jurists and domestic enterprises etc - who have all become aware of the costs and results of global IPR regimes, harmonization of standards, and enforcement in domestic courts and via the WTO.

They see the costs as arising as a result of the ‘global monopoly’ provided by the intellectual property system under the WTO TRIPS regime, the ‘rents’ paid to holders of such property, and the mercantilist interests of the major corporations, including the pharmaceutical TNCs, that industrialized country-governments are seeking to advance, not only at the WTO, but in all international fora.

At the same time, there is lack of empirical evidence of the benefits - increased availability and flows of technology at affordable prices, or of investments, and productive activity and employment and growth.

The Beijing summit, and any statement or declaration from heads of states/governments, is thus viewed in terms of its potential for being cited against developing world by industrialized countries in various negotiations.

The developing countries have in mind the fact that the major industrial centres, including the US and EC, who if they cannot have their way at the WTO, pick up the issue tangentially at another forum and smuggle in some innocuous looking phrases, and then come back to the WTO to tell the developing countries that their governments had already agreed to this at another fora.

The EC, for example, attempted this tactic at the UN in New York, during the preparations for the Conference on Financing for Development, and at the Johannesburg Rio+10 summit last year - where it sought to smuggle in propositions it could not get through at the 4th ministerial in Doha.

At the Monday consultations, Pakistan for the Asian group, in some initial comments wanted the initial preambular paragraphs to be shortened, while strengthening the operative parts.

On the substance, the Asian group said that the development dimension of intellectual property needed to be elaborated and further fleshed out. There should be a clear affirmation of the important principle of the ability of all countries to use the flexibilities and options available in the IP system.

Further, the IP regimes in developing countries should be in consonance with their specific developmental requirements.

Asian group did not also want the broad concept of development to be circumscribed by the more limited and restrictive term ‘sustainable development’. The term ‘development’ should encompass the important notions of economic, social and cultural development.

Pakistan also said the draft covered a number of issues whose inclusion or the manner of doing this had given rise to difficulties. It cited in this regard the notion of ‘harmonization of intellectual property laws’ in a preambular paragraph, and said the Asian group found this problematic, and even inappropriate in the context of the declaration.

[The draft in preambular paragraph 17, has this wording:’Mindful of the need to take into account themes such as sustainable development, harmonization of intellectual property laws, emerging technologies and the increasing workload of industrial property offices.’]

At an initial preparatory meeting, regional groups and members from the South expressed some clear views on what could figure and what could not - with the Asians apparently providing a kind of outline that got support from the African and the Latin Americans.

The draft (13 February), put forward by the WIPO bureau and considered at a preparatory meeting this week, has twentytwo preambular paragraphs, and four operative paragraphs of decisions or recommendations of ‘resolve’ by the Summit participants.

Third world delegations view the overall effect as one that could put them further along the path of upward harmonization of regimes and policies across countries, and concerns that even the most innocuous sounding phrases and wording in declarations by their heads of governments would be cited against them and their stands at other fora - while the industrialized countries would have no compunction, in terms of their obligations, in being bound by such declarations.

In a sense the reactions of developing country delegations in any international or even bilateral and regional fora, are like those of a cat that tried to get at the milk on a kettle on a stove, and tries with its paw to knock it down to get at the milk. Getting its paws scalded, the cat will forever shun anything that looks like a stove, or any vessel that is shaped like a kettle with a spout and anything black and spherical.

Developing countries and their governments are aware that back home they have their constituencies and civil society groups, often having more expertise and knowledge to analyse and respond to advices from the international organizations, and lobby inside the countries other parts of the system - in governments, enterprises and others - to challenge governmental actions. – SUNS5287

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