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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. +
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