TWN Info Service on Intellectual Property Issues (Mar08/02)
12 March 2008
Third World Network


Please find below our news report on the discussions and outcomes of the first meeting of WIPO’s newly established Committee on Development and Intellectual Property which ended on Friday, 7 March.

For more information on WIPO Development Agenda please see http://www.twnside.org.sg/IP_wipo.htm

The Report was first published in SUNS#6432 dated 11 March 2008 and is reproduced here with permission.


Best Regards
Sangeeta Shashikant
Third World Network
email: ssangeeta@myjaring.net

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WIPO: Development Agenda meeting ends, slow progress on implementation
Published in SUNS #6432 dated 11 March 2008


Geneva, 9 Mar (Sangeeta Shashikant) -- The first meeting of WIPO's newly established Committee on Development and Intellectual Property (CDIP) ended on Friday 7 March after making slow progress on six recommendations relating to technical assistance.

Developing country diplomats who attended the meeting gave a cautiously optimistic assessment of the meeting. Brazilian diplomat Guilherme Patriota described the outcome as "appearing to be lacklustre at first glance, but a positive first step in reality". An Egyptian delegate said that he wished that the Committee could have made more progress, but he acknowledged that this was the CDIP's first meeting.

Most developing countries appeared to have taken a cautious attitude, as they were not sure what to expect from the first CDIP meeting, and for them the fight for implementing the Development Agenda (DA) is long-term. On the other hand, developed countries were concerned about budgetary implications, as they were looking to restrict the budget of the organisation.

To some delegates, it appeared that some members of the Secretariat were interested in having progress on the Development Agenda so that there would be a bigger budget and broader mandate for WIPO through implementation of the agenda.

The week-long meeting was held mainly in an "informal mode", which means that most of the discussions may not be captured in the report of the meeting.

The meeting mainly discussed procedural issues; 6 of the 45 adopted proposals on technical assistance (cluster A) and the committee's future work. It reached broad agreement on 6 of the 45 adopted proposals subject to the principle that "Nothing is agreed until everything is agreed". The Secretariat has been asked to assess the human resource and financial implications.

The meeting did not however agree to any concrete outcomes except that work should continue in informal sessions on the rest of the proposals, in particular those with human and financial implications.

The CDIP was established by the last WIPO General Assembly with the mandate to develop a work programme for implementation of the 45 adopted recommendations; monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose it shall coordinate with relevant WIPO bodies; discuss IP and development-related issues as agreed by the Committee, as well as those decided by the General Assembly.

In an interview with SUNS after the meeting concluded, Patriota, whose country Brazil has been one of the major advocates of the Development Agenda, said that "there is a presumption in the Development Agenda that a "one size fits all" solution to IP, indifferent to the diverse national landscapes and realities specific to developing countries, is no longer an acceptable outcome for WIPO as a UN Specialized Agency".

Thus, he added, "the mere existence of the Committee constitutes an historic opportunity to establish a new equilibrium, or point of convergence among an increasingly diverse range of views that has sprung up outside of the WIPO sphere on how intellectual property relates with economic and social development goals, how it impacts on countries' national public policy space, and on where the right balance between levels of protection and promotion of innovation and creativity actually lies."

Patriota said one of the fundamental challenges facing the CDIP is translating the broadly stated recommendations into specific executable actions.

During the meeting, the approach taken by the developed countries and some Secretariat members seemed to be to filter the broadly stated Development Agenda recommendations into executable actions, to which a price tag is to be attached.

However, in Patriota's view this piece-meal approach does not meet the underlining intention of launching development agenda. What is required is to transform the way WIPO does its work, and its mindset on IPRs so as to become development-oriented.

He said that the "Development Agenda is about WIPO moving beyond a narrow IP holder's-centric perspective of intellectual property -- whereby protection of rights is all and everything that must be achieved, and the higher the levels of protection the better -- to adopting a broader perspective on the complex relationship between IP and economic and social development, taking into account particularly the different realities faced by developing countries."

The development perspective would also include perspectives of a broader constituency of non-IP holders in developed countries.

If WIPO is to retain a relevant role in the international IP system, more efforts will have to be made to provide adequate responses to the complex and nuanced questions that are being raised on IP issues from many corners of the world - North and South, Patriota said.

He added that "the idea that everything in the development agenda must be translated into a specific project reflects of itself the biased view of those WIPO members who do not wish to accept the Development Agenda as a transformational tool, conceived to promote substantive changes (cultural and systemic) in the way WIPO has been carrying out its work."

Several other developing country delegations, speaking privately, echoed similar views. They felt that discussions in the CDIP should lead to a much-needed culture change in WIPO. This would not be achieved by a "quick-fix" anticipated by the developed countries and the Secretariat.

A Chair's Summary was presented by the Chair of the CDIP, Ambassador Trevor Clarke of Barbados, on the final day. On future work, it said that there was a need to continue consideration of the work-program for implementation of the adopted recommendations.

The Summary added that the Chair will organise informal consultations before the next CDIP session (that is to take place in July), and these consultation would cover the adopted recommendations "with attention being paid to those recommendations with additional financial and human resource requirements to enable the Secretariat to make the necessary assessments".

On the outcome, Patriota said that although it was drafted in relatively vague terms, trust had been given to the Chair to lead the process and to the Secretariat to review some of the documents discussed, and members expected the process to move forward with positive results.

He added that while developed countries were initially not supportive of the consultations, they accepted it in light of the broad support from developing countries.

Patriota viewed the debate itself, and a benign level of confrontation among different ideas and perspectives, as being "a healthy and necessary exercise" that "might help promote the changes so desired by a broad constituency of WIPO members and stakeholders".

During the week, discussions took place on 6 of the 45 adopted recommendations on the basis of initial working documents prepared by the Chair (in consultation with member states and the WIPO Secretariat) i. e. Preliminary Implementation Report with respect to the 19 proposals (to be implemented immediately) and Initial Working Document regarding the implementation of 26 agreed proposals (WIPO Doc. CDIP/1/3). The Group of Friends of Development (GFOD) also submitted proposals on the 6 recommendations.

The 6 recommendations on technical assistance that were discussed were:

-- WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion. In this regard, design, delivery mechanisms and evaluation processes of technical assistance programs should be country specific. (Recommendation No. 1 in the list of 19 proposals).

-- Provide additional assistance to WIPO through donor funding, and establish Trust Funds or other voluntary funds within WIPO specifically for LDCs, while continuing to accord high priority to finance activities in Africa through budgetary and extrabudgetary resources, to promote, inter alia, the legal, commercial, cultural, and economic exploitation of intellectual property in these countries. (Recommendation No. 2 in list of 26 proposals).

-- WIPO shall display general information on all technical assistance activities on its website, and shall provide, on request from Member States, details of specific activities, with the consent of the Member State(s) and other recipients concerned, for which the activity was implemented. (Recommendation No. 5 in list of 26 proposals)

-- Request WIPO to develop agreements with research institutions and with private enterprises with a view to facilitating the national offices of developing countries, especially LDCs, as well as their regional and sub-regional IP organizations to access specialized databases for the purposes of patent searches. (Recommendation No. 8 in list of 26 proposals)

-- Request WIPO to create, in coordination with Member States, a database to match specific IPrelated development needs with available resources, thereby expanding the scope of its technical assistance programs, aimed at bridging the digital divide. (Recommendation No. 9 in list of 26 proposals)

-- To assist Member States to develop and improve national IP institutional capacity through further development of infrastructure and other facilities with a view to making national IP institutions more efficient and promote fair balance between IP protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with IP (Recommendation No. 10 in list of 26 proposals)

Discussion on each of the recommendations was followed by an oral summary of the chair on the broad agreement reached in relation to each recommendation. The working documents of the Chair are to be updated by the Secretariat based on the summary and interventions made by member states.

On the last day of the meeting, Recommendation 1 was the subject of controversy. The Chair's document simply lists ongoing and planned activities of the Secretariat. The Group of the Friends of Development (GFOD) which is led by Argentina and Brazil) proposed that the recommendation be taken into account in all WIPO technical assistance activities, and it should also be added to the manual on staff regulations and rules and/or in the code of ethics.

The GFOD also wanted the DA recommendations to be incorporated in all WIPO documents such as the strategic goals in the programme and budget of the organization, the organisation's medium term plan, in the 2007 general booklet on WIPO that provides an overview etc.

Explaining the GFOD's position, Patriota told SUNS that mainstreaming development agenda concepts into the WIPO institutional framework is critical. Including appropriate parts of the adopted recommendations in such basic reference documents as the WIPO staff rules and regulations, which every staff member is committed to learn follow, seems an obvious step in this direction, he added.

However, according to diplomatic sources, the GFOD's first proposal seemed to upset the Secretariat.

According to Patriota, during discussions on the issue, the Head of Human Resources at WIPO made what he described as "an unwarranted statement" to the delegations that all WIPO personnel are neutral, implying there is no need for Member States to impose neutrality guidelines on them.

According to Patriota, another staff member the described "flexibilities" as also the "freedom" to implement standards of IP protection that go beyond Member's international obligations.

He called such an interpretation "outrageous in technical terms", adding that the explanation was presented as "a very personal interpretation" of the term "flexibilities" as it applies to IP and "represents a complete subversion of the Development Agenda concept".

Following the Secretariat's intervention, Brazil immediately intervened during the informal session stating on record that it does not agree that "TRIPS-plus" measures are considered flexibilities. Flexibilities refer instead to flexibility of policy space such as exceptions and limitations, added Brazil. It said it did not agree to the Secretariat staff member's definition, and it does not know why the Secretariat mentioned it in that fashion. It asserted that the issue of flexibilities should be the subject of a debate.

Patriota also clarified that for developing countries to take on measures beyond their obligations in the TRIPS agreement would amount to "rigidity as it relinquishes policy space".

Patriota told SUNS that "the irony of the situation cannot be overstated, for both WIPO officials seemed unaware of how their behavior and statements, there and then, denied the very neutrality of WIPO staff they were so intent on asserting: the Head of Human Resources taking a stand against the Organization being "member-driven" in his blanket defense of his fellow colleagues; and the supposed expert on flexibilities providing an absolutely non-neutral interpretation of the concept of flexibility, oblivious to the views of others, and demonstrating very limited capacity do understand the crux of the Development Agenda debate".

He said that "bureaucratic and technical arrogance are ultimately self defeating for the Organization because it hurts its credibility and establishes a firewall against positive interaction with the outside world". He remarked that "a refusal to face the issues, as they are being presented by different stakeholders, is the shortest path to irrelevance".

Another matter of concern to several delegates was the issue of donors and technical assistance, which is related to recommendations 2 and 9. In relation to recommendation 2, the GFOD proposed that the use of funds should not be discriminatory. The creation of a monitoring system for the destination of the funds was proposed for both the recommendations 2 and 9.

The Africa group was supportive of a monitoring system and expressed the idea of having general principles concerning the issue.

On recommendation 2, the Chair's working document proposed the preparation of a paper for the CDIP to update and enhance the information available in the 2008/2009 program and budget on existing voluntary and funds in trust. The paper would also report on existing efforts and proposals for future activities aimed at increasing availability of voluntary funding including organizing a regular donor conference starting with one in 2008/09.

The establishment of a consultation mechanism with donor agencies to discuss funding and to formulate programs and projects on a regional, sub-regional or national level, with provisions of reporting, monitoring and evaluation, is further proposed in the Chair's working document.

Several queries were raised by delegations on how funds should be administered, on rules and principles for managing the fund, the modalities of a monitoring system as well as the consultation mechanism.

On this recommendation, the Chair summarized that the Secretariat will include, in its paper, an analysis of the implications of these issues. He added that since countries are donating the funds, the more prescriptive Members try to be, the less there may be funds, and there needed to be balance.

From the Chair's oral summary, while the paper to be prepared by the Secretariat should address the issue of monitoring of funds, it may not address the issue that funds should not be discriminatory, an issue raised by several developing countries at the informal meeting.

It is also not clear whether the paper will address the issue of rules and principles for managing the funds, although the Chair's summary mentioned that the recommendations and other relevant elements of the DA can be brought to the attention of the donors.

Several developing country delegates as well as public interest NGOs expressed concern that the trend seemed to be moving towards "outsourcing" of technical assistance to donors and that such technical assistance would bypass WIPO and the hard fought elements of WIPO DA.

The issue of "donors" returned during discussion on recommendation 9. Here, the Chair's working document proposed the establishment of an effective diagnostic tool for assessing the IP-related development needs of countries, in conformity with the development agenda proposal, and setting up a match-making and clearing house mechanism.

The document also proposed collaborative mechanisms for regular collection of information on the potential donors and partners as well as their available funds and expertise for WIPO to match with the specific needs.

With regard to this recommendation, originally proposed by the US, Brazil stressed the importance of monitoring and assessment. It also raised several points, such as what is the role of WIPO and its members, does the Secretariat simply set up the site while prospective donors offer money and demanders fill in a form, or will there be a pro-active role for the Secretariat, how do members know which activities will conform with the general principles and guidelines of DA, and how will there be accountability.

According to an African delegate, the Africa Group requested that "bridging the digital divide" be reflected in the diagnostic tool and database.

In relation to recommendation 5, the Chair's working document proposed to initiate work on a project to design and develop a consolidated database for all such activities including human resource development and to update it regularly. It added that general information will be available on the WIPO website while more detailed information will be made available on specific activities based on appropriate authorisations.

At the meeting, the GFOD stressed the need for transparency and that information on the website should include the name of the WIPO department in charge of the technical assistance activity, the name of the project, summary of the project, donor, amount of money involved, destination of the technical assistance activity (country and recipient agency). The main purpose of the proposal was to ensure access to information.

Some delegations wanted more clarity on what is "general information" and what is "detailed information" with suggestions that there should be enough information so that a country may learn from the capacity building experiences of other countries.

According to diplomats, on this recommendation, the Chair orally summarised that while there may be no difficulty in providing the name of the project, the department involved, the destination/agency receiving technical assistance, and the country of origin of consultants, there may be difficulty with regards to revealing the consultant's name, summary of project, name of donor and the amount of money involved.

Ambassador Clarke in his summary further said that the fundamental principle is that specific information will only be provided following appropriate authorizations and that implementation of the recommendation will be based on the principles of the DA. The Chair said that participants had to strive for balance and that donors would be presented with the DA elements and that it is for them to decide how much information should be revealed.

With regard to recommendation 8, the Chair's working document proposed a study to identify relevant databases and other resources and to propose options for licensing or otherwise providing access to those databases for IP offices and/or for the general public particularly in developing countries. It also proposed approaches for the use of IP information in particular patent information and documentation.

The GFOD proposed (1) the preparation of a model contract to be discussed in the committee and to be adopted as a reference; (2) reporting of activities to the CDIP; and (3) a forum between database owners and interested stakeholders to facilitate access.

The aim of the model contract and negotiating preferential rates is to allow IP offices in developing countries to gain access on more favourable terms to some of the key databases that contain patent information. These databases could assist in improving for example the quality of patents granted but they are often inaccessible to developing countries due to the high entry fees.

Since there were some concerns about the proposed model contract and the cost involved, the Chair summarised orally that there was a need for further discussion. The idea of a model contract and a possible forum are still on the table for further discussion.

Discussion on recommendation 10 was lengthy and also the subject of much debate. The Chair’s working document proposed many items including making efforts to strengthen the institutional framework and coordinating mechanisms for improved management and enforcement of IP rights; forging functional links between IP administrations and other national institutions in several areas such as R&D, industry, enforcement; to study the feasibility of establishing procedures for sharing the accomplishment of IP granting tasks; and this could result in new models of technical cooperation to be implemented on a sub-regional and regional level etc.

In contrast, the GFOD proposal stresses technical assistance activities focusing on improving the quality of patent examination, and taking into account "fair balance" between IP protection and the public interest.

According to diplomats, the Chair in summarizing the interventions said that there does not seem to be enough in the Secretariat proposals (in the Chair’s working document) that responds to the "fair balance". He sought new ideas from Member states.

Responding to concerns by some developing country member states about WIPO taking an active role in enforcement issues, the Chair summarized that all such efforts should be on request of member states.

Due to the dissatisfaction of some delegations about activities proposed, on Brazil's request the Secretariat is to propose a menu of options for member states to consider. Recommendation 10 is also to be further discussed at future meetings.

After the meeting ended, some developing country delegates and NGOs gave comments to the SUNS on their observations on the discussion on technical assistance at the meeting.

Patriota from Brazil told the SUNS that most of Secretariat's text was an attempt to translate the principles and recommendations of the Development Agenda (that had been agreed to) into a long listing of ongoing activities, but according to the Secretariat, for reasons of confidentiality, they cannot be fully described, disclosed or debated. At the same time, he said it is alleged that due to the specificities, these activities cannot be taken up as standard or typical practices of the Organization.

This gives the Secretariat a kind of shield against multilateral scrutiny and monitoring of its work and practices in the field in developing countries, he said. The way to overcome the limitations of such an approach would be for the Secretariat to present to Members a clear and structured set of types of activities it has been performing or may perform in the future, as an upfront menu of options for technical and legislation assistance.

This would allow members to give their opinion as to whether or not the content, orientation and nature of the Secretariat's activities really conforms to the principles and guidelines of the Development Agenda agreed framework, he added.

Patriota said that the WIPO Director General's decision to create a specific unit within the Secretariat responsible for the Development Agenda, though practical in many ways, challenges the desired overarching and holistic nature of the DA initiative.

This is because the adopted recommendations cut across all sectors of the WIPO structure, from technical assistance, to norm-setting, to transfer of technology, to issues of exceptions and limitations in copyrights, to patents, to TRIPS flexibilities, to dealing with the public domain, to developing a pool of expertise on competition issues.

He stressed that the CDIP should not be seen in isolation from other committees (including the Standing Committee on Patents, the Standing Committee on Copyrights or the Advisory Committee on Enforcement). Its work and deliberations must impact other bodies of WIPO as appropriate.

Knowledge Ecology International, a US-based NGO that has been very active in following WIPO activities, said it was concerned with the way the meeting went on, particularly the dogged determination of the Secretariat to conduct business as usual in its technical assistance to developing countries.

It was especially unhappy with how the Secretariat dispensed its advice, including packaging "TRIPS plus" measures as "flexibilities" of the TRIPS Agreement. It was also concerned about how the meeting insisted on costing every Development Agenda recommendation. "Some recommendations are holistic principles which cannot be given a price tag," said a KEI representative. +