Info Service on Health Issues (Jul13/02)
WIPO: Secretariat drives agenda on global issues, its legitimacy in question
Geneva, 10 July (Sangeeta Shashikant) – The World Intellectual Property Organization (WIPO) has set for itself the aim to be a “leading intergovernmental forum for addressing the intersection between intellectual property (IP) and global public policy issues”.
This was done with the establishment of the new Program 18 on “IP and Global Challenges” under “Strategic Goal VII: Addressing IP In Relation to Global Policy Issues” of the WIPO Program and Budget document for the 2008/2009 biennium.
However, five years on, the legitimacy of WIPO’s Program on IP and Global Policy is in question. Despite its lauded aim, to date no substantive intergovernmental discussions have taken place on the interface of intellectual property and global public issues to guide the work of the Program.
The role of its Member States has been reduced to that of a mere bystander, entitled only to information briefings on Secretariat activities, while the Secretariat remains in full control of the Program, defining its priorities and activities, and unilaterally determining how to address the complex intersection of IP and public policy issues.
Several Member States participating in the week long meeting of the Program & Budget Committee (PBC) which began on Monday, 8 July, raised concerns over lack of information and Member State oversight over the Program’s activities as they reviewed WIPO’s performance report for 2012.
Concern over activities of the Global Challenges program and the demand for more oversight by way of in-depth discussion in a WIPO Committee is not new. It has been raised by developing countries on numerous occasions, but has made little headway due to opposition from developed countries. These countries continue to insist that oral briefings by the Secretariat during the PBC are sufficient. [See http://www.twnside.org.sg/title2/climate/info.service/2012/climate20120904.htm]
Even the request of Brazil on behalf of the Development Agenda Group, that the Secretariat prepare a separate written report and provide detailed information on its activities was opposed by Group B (composed of developed countries).
The PBC will discuss at its ongoing meeting various matters related to WIPO’s Program & Budget, including its Performance Report for 2012 and the draft Program & Budget for the 2014/2015 biennium.
Public Policy – Performance in 2012
In its self-assessment report titled “Program Performance Report” (PPR), the Secretariat states “Program 18 addresses innovation and IP at the intersection of pressing global and interconnected issues, in particular Global Health, Climate Change, and Food Security.”
It claims that its “efforts have led to an increased recognition of WIPO as a credible source of support, collaboration with and reference for information on innovation and IP in relation to the global challenges” on the topics mentioned above, adding also that “The Program continued to receive positive comments and support from a wide range of stakeholders for WIPO’s work on IP and Global Challenges.”
On the topics of Global Health, Climate Change and Food Security, the Secretariat’s report highlights several activities it has undertaken.
On global health, it refers to WIPO Re: Search, a database whereby entities holding intellectual property related to neglected tropical diseases could offer access to their intellectual property by way of contractual arrangements. Entities using the database have to agree to certain guiding principles, in particular that royalty free licenses should be granted where the R&D involves least developed countries (LDCs).
In briefing Member States, the Secretariat referred to WIPO Re: Search as an “open innovation network.”
According to the Secretariat, since the launch of WIPO Re: Search in 2011, 26 collaborations and 5 hosting arrangements (African scientists developing their research skills at facilities of certain developed country Members) have been initiated.
On the topic of climate change, the PPR refers to WIPO GREEN, a database to be launched in November 2013 where holders of technologies may upload information about their technologies for licensing.
In relation to food security, the PPR states “[w]ork on the relationship between IP and food security was progressing through the further exploration of a case study on IP, innovation and food security, jointly with the Government of Tanzania and other relevant stakeholders”.
addition, mention is also made to seminars WIPO has organized and
studies it has undertaken on the above topics as well as on IP and
While the PPR unequivocally raves about the Secretariat’s achievements, shortcomings/criticisms of the initiatives that have been raised by a number of stakeholders remain unaddressed and even unacknowledged in the PPR.
On the WIPO Re: Search, Médecins Sans Frontières (MSF), an international medical humanitarian agency has been critical of the initiative as it “restricts royalty-free licences to least developed countries only, with access for other developing countries negotiable on a case by case basis” adding that “access provisions need to be put in place to ensure the fruits of that innovation reaches those most in need”. It further states “With its timid approach to licensing terms, WIPO is falling behind in its access policies, when it should be leading”.
Drugs for Neglected Disease initiative (DNDi), a product development partnership engaged in development of treatments for neglected diseases and a partner of WIPO Re: Search, has also called on WIPO to “take a step further in terms of access, especially by including not only the least developed countries but all neglected disease-endemic countries” and for “transparency in licensing practices that have a public health goal”.
A developing country source described the Secretariat’s labeling of the initiative as an “open innovation network” as “misleading” since in reality there is very little openness around the initiative. Contractual arrangements are completed with no transparency with regard to the terms of the licenses, (e.g. how the issue of intellectual property is dealt with, particularly where the licensee is from a developing country, and if other contractual demands are made that restrict follow-up R&D by the licensee). The source also remained skeptical about WIPO Green, adding that it was nothing more than a “business as usual” licensing arrangement.
WIPO’s work in the area of food security has also come under scrutiny. In 2012, a group of NGOs had written letters to Mr. Francis Gurry, the WIPO Director-General, and Mr. Johannes Christian Wichard, the Deputy Director-General, raising various concerns with regard to the Secretariat's approach to food security. In particular, the NGOs raised concern over the organisation of a workshop in May 2012 on IP and Food Security, stating that the "workshop lacked a balanced range of topics and participants and consequently failed to deliver the full range of perspectives on the role of IP". In line with the Development Agenda recommendations, the NGOs also requested more information on the workshop, but no information was forthcoming from the Secretariat. [See http://www.twnside.org.sg/title2/climate/info.service/2012/climate20120601.htm]
Member States’ concerns
Member States reviewed WIPO performance report for 2012 this week,
Brazil queried as to who determined the choice of projects
that are to be implemented and how can Member States further interact
with the Program, which only reports to the PBC. Brazil also requested
the Secretariat to submit a written report on its activities.
France also questioned the “added value” that WIPO brought to the discussion e.g. on food security, stressing that WIPO does not have experience to be an equal partner. It also questioned who decided which activity is going to be implemented and how WIPO positions itself so that it is working correctly around the issue.
It also questioned the legitimacy of WIPO being active in the area, adding its view that WIPO was trying to “gain territory”.
In response to the various questions Wichard stressed that in its activities it tries to avoid duplication, adding defensively that WIPO was not engaging in “mission creep”. Wichard also referred to the broad mandate of the 2011/2012 biennium in an attempt to justify the work of Program 18, stressing that it provided “neutral and fact based resource” and that WIPO was not “overstating WIPO’s importance or the importance of IP”.
Brazil, Egypt and Algeria (on behalf of the Africa Group) stressed on the need for a written report by Program 18 to provide more detailed information on the Program. Brazil explained the need for a detailed report was linked to the special characteristics of the Program, which only reports to the PBC.
Group B (composed of developed countries) opposed the suggestion, adding that they did not need additional information and were happy with things as they stand.
It was finally agreed that the Program Performance Report could be expanded to provide more information on the work of the Program.
Draft P&B 2014/2015: More of the Same?
The draft P&B for the biennium 2014/2015 that will be considered at the current PBC discussions reveals an agenda similar to those of previous years.
Strategic Goal VII of the draft “reflects WIPO’s potential as the leading intergovernmental forum for addressing the interaction between IP, innovation and global public policy issues” adding “it implies proactive and substantive engagement with other UN, intergovernmental and non-governmental organizations in order to contribute to the search for shared solutions to the major challenges facing humanity including climate change, food security and public health”.
The draft P&B claims that the focus of the Program on addressing “innovation and IP at the nexus of interconnected global issues in particular Global Health, Climate Change and Food Security …”, “is guided largely by Member States as noted, inter alia in the DA”.
It further states, “Solutions for global problems depend in part on unlocking the potential of innovation in such a way that countries at all levels of development, benefit”. It adds that during the biennium, “the Program will continue to engage in policy dialogues on IP and global challenges with the aim or reinforcing WIPO’s role as a credible source of fact-based information and analysis and a forum for international discussion” further adding that work is guided by the DA and Millennium Developments Goals.
In terms of implementation strategies, the focus of the Program will be on:
(i) “Developing and maintaining practical IP-based mechanisms and tools for addressing global challenges”. Essentially the core emphasis of this strategy will be multistakeholder platforms presumably such as WIPO Re:Search and WIPO Green.
(ii) “Providing support to Member States, IGOs, civil society, and other stakeholders and assisting them in the identification of feasible approaches”. Under this Strategy, the Secretariat claims that it will “provide a neutral and objective analysis” and provide substantive inputs in public policy processes (with an emphasis on UN processes) aimed at establishing “WIPO as the forum and reference point on IP as it touches on global public policy issues”.
(iii) “Developing objective and balanced information on the relationships among global challenges, innovation and technology transfer”. Under this strategy, the Secretariat may develop policy studies on “the role of IP and IP management in technology transfer” and “for a better understanding of the policy and strategic drivers of innovation; demonstrate proactively the use of IP tools and support Member States’ understanding of technology transfer”.
The approach taken by the Secretariat raises a number of concerns.
The draft P&B does not envisage any substantive intergovernmental discussion focused on the interface between intellectual property and global policy issues. This is so although the Development Agenda Recommendations that WIPO relies on to justify its engagement on public policy issues contemplate discussions among Member States. For instance Recommendation 19 which the Secretariat relies on to justify its activities on technology transfer require “… discussion on how, within WIPO’s mandate, to further facilitate access to knowledge and technology for developing countries and LDCs to foster creativity and innovation and to strengthen such existing activities within WIPO.”
The approach presented in the draft P&B is essentially Secretariat-driven, and unlike that found in other Member State-driven intergovernmental organizations whereby the tone of the discussion and direction on the interface between interface between IP and public policy is set by the membership. For instance in the case of the World Health Organization, the relationship between IP, innovation and public health was first examined by expert commissions, followed by a rigorous discussions among Member States and the formulation of a global strategy and various other resolutions to be implemented by the Secretariat.
The lack of Member State discussion and in that context the absence of any serious examination of the interface between intellectual property and global policy issues calls into question WIPO’s credibility in dealing with such matters. This is more so since WIPO has no historical experience in analyzing such issues and initiatives, and the perspectives championed by the Program essentially reflect the Secretariat’s understanding of the interface between IP and public policy issues and preferences in terms of solution.
Consequently it is the Secretariat’s understanding and views of the complex interface between intellectual property and public policy that is promoted in international public policy processes, often in a manner that misleads other intergovernmenatal organisations and stakeholders to believe that the Secretariat is reflecting the position of WIPO Member States.
This was amply demonstrated in a recent meeting (26-28 June) of the Technology Executive Committee of the UN Framework Convention on Climate Change (UNFCCC), whereby a member of the WIPO Secretariat cited a study WIPO had commissioned and which concluded that there is evidence that IPRs are an enabler of technology transfer but not a barrier, a view opposed by many developing countries in the context of the UNFCCC. It was only on being questioned did the Secretariat clarify that the study cited was not the position of WIPO Member States. For more details see: http://www.twnside.org.sg/title2/climate/info.service/2012/climate20120601.htm
In addition, the Program is generally focused on the positive aspects of intellectual property as its key implementation strategy is “to develop and maintain IP-based mechanisms and tools” as it considers IP to be a “tool to achieve socio-economic and development objectives”. In the elaboration there is no acknowledgement that intellectual property can adversely impact public interest in a number of ways, an issue well-acknowledged today by numerous other UN agencies such UNDP, UNCTAD and WHO.
Noting the one-sided view of intellectual property, it is unsurprising that the Secretariat is keenly pursuing voluntary licensing schemes such as WIPO Green and WIPO Re: Search.
There is also no indication in the elaboration of Program 18 that the Secretariat is committed to address the shortcomings highlighted by MSF and DNDi with regard to WIPO Re: Search. +