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TWN Info Service on Intellectual Property Issues (Oct17/10)
23 October 2017
Third World Network

Dear friends and colleagues,

Attached are 8 statements that TWN made at the recent annual WIPO General Assemblies that took place on 2 to 11 October 2017 in Geneva.  The first statement was made at the plenary followed by 7 statements made at various WIPO committees on the norm setting work of WIPO.

With best wishes,

Third World Network

TWN Statements during the 57th Series of Meetings of WIPO Assemblies

Below are 8 statements that TWN made at the recent annual WIPO General Assemblies that took place on 2 to 11 October 2017 in Geneva.  The first statement was made at the plenary followed by 7 statements made at various WIPO committees on the norm setting work of WIPO.

General Statement (Agenda Item 5)

Thank You Mr. Vice President for this opportunity.

We take note of the Director General’s (DG) remarks on innovation. The DG is absolutely correct when he states, “Innovation become a central element of the economic and industrial strategies of a wide spectrum of countries”.  However, we would like to remind the Member States (MS) and the WIPO Secretariat that innovation is not necessarily driven by intellectual property (IP). While designing an innovation policy IP is one of the elements that policy makers take into consideration but it is not a critical element. In other words, innovation should not be used as a ruse to push an IP maximalist agenda. A maximalist protection and enforcement of IP can act as a barrier to innovation.

In this regard we would like to draw the attention of MS and the WIPO Secretariat to UNCTAD’s Trade and Development Report (TDR) 2017 that carried out an analysis of working of patents under a chapter titled “Market Power and Inequality: Revenge of Market Rentiers”.  Citing the OECD (2015), the report states: “… average technological and economic value of inventions protected by patents has eroded over time”, and “the legal right to exclude others has become broad and susceptible to abuse”. 

Further, the report analyses the introduction of the product patent regime in India and makes the following findings: “After 2005, when product patents for drugs were introduced, sales per worker of the MNC affiliates more than doubled, whereas sales per worker in local companies were stagnant throughout the period, and declined after 2010, despite a resilient local pharmaceutical sector”.  The report then warns: “In less competitive developing countries or sectors, future outcomes could be devastating if these trends are allowed to continue unchecked”.

Another issue to we would like to draw the attention of MS is the growing number of partnerships WIPO is entering into. Some of these partnerships involve conflict of interests and risks the reputation of the Organization. Currently, there is no mechanism in WIPO which offers Member States oversight over partnerships.  The Organisation should not enter into public private partnerships with pharmaceutical business associations to establish a patent database project as this will give rise to conflict of interests, especially when there are competing international organisations like WHO, which can bring much value in terms of addressing patents and medicines.

This calls for an urgent need for governance reform in WIPO. Governance reform is also warranted to put firewalls between IP service activities and legal and technical advisory functions of the Organization. Similarly, safeguards are required to check the “revolving door” between industry and the Organization in relation to personnel.  We request Member Sates to revive the governance reform agenda.

Thank you.


TWN Statements on WIPO Committees and International Normative Framework

1.  Standing Committee on Copyright and Related Rights (SCCR)  (Agenda Item 13)

Thank You, Mr. Vice Chair.

We consider it is important for the SCCR to take cognisance of the Sustainable Development Goals (SDGs), particularly SDG 4 on quality of education. Access to books is important for the achievement of SDG 4.  The Marrakesh Treaty is an important instrument to end the “book famine” for people with visual difficulties.

However, where access to educational materials of students and teachers in developing countries is concerned there is still a book famine. Initiatives like WIPO’s book consortium are a welcome step; however charity has its own limitations.  A legal regime supporting access to books and other educational materials is critical to ensure access to books to millions of people who are in need.

Further, the technological absorption capacity in developing countries can be built only by enhancing the quality of the technological work force in developing countries. Copyright laws play an important role in ensuring access to knowledge on technology.

Therefore, we call upon Member States (MS) to move forward on the exceptions and limitations for educational and research institutions as well as persons with other disabilities. We also support the forward movement on exceptions and limitations to libraries and archives.

While engaging in SCCR deliberations there is an urgent need for MS to introduce optimal use of flexibilities in their national law to facilitate access to knowledge and expand the public domain. WIPO’s technical assistance in this regard should promote the use of flexibilities to expand the scope of exceptions and limitations in the domestic copyright law.


Further, there is a growing trend to use trade instruments to impose “TRIPS Plus” obligations on copyrights. We call on MS to reject these TRIPS Plus measures.

We also call upon MS to stick to the mandate of the General Assembly on a broadcasting treaty. There should not be any effort to move away from the mandate and to create new sets of rights for broadcasters, who can already safeguard their interest under the current copyright framework.  

Thank you.


2.         Standing Committee on Patents (Agenda Item 14)

Thank you Mr. Chair.

We take this opportunity to thank Member States (MS) for reaching a consensus on the future work of the Standing Committee on Patents (SCP) in its last session.

We once again draw the attention of the MS and the WIPO Secretariat to UNCTAD’s 2017 edition of the Trade and Development Report. It states that two regulatory developments in the area of patent have played an important role in promoting the trend towards their strategic, rather than productive, use viz. the excessive strengthening of patent protection such as ever greening of patents and the expansion of intellectual property (IP) protection to cover newer areas such as business model patents. According to the report, the practices of patent thickets and patent fencing “lead to expanded patent protection over entire technological domains, and guarantee continuing economic advantages to incumbent firms in technology sectors”.  This situation calls for an urgent relook at the approach of MS and WIPO Secretariat’s work program on patents. There is a need to curb the abuse of patents.

The SCP needs to discuss the various abuses of patents and experiences of MS to deal with this situation. For instance, the US, Korea and China had initiated proceedings against the mobile chip manufacturer QUALCOMM. Korean authorities imposed a fine of USD 853 million for abusive practices. Similarly, Chinese authorities also imposed USD 994 million. It is important for the SCP to discuss this issue.  

                                                               

In our statement at the GA on SCP in 2016, we drew attention to the recommendation of UN High Level Panel on Access to Medicines that was directed to WIPO. The Panel recommended WIPO in collaboration with stakeholders to “develop an international, easily searchable database which should include: (1) standard international common names for biological products; (2) international non-proprietary names for products, either as known at the time of application or after the granting of a patent; and (3) dates of grant and expiry”.  What is important in the recommendation is the term stakeholders and not a single stakeholder.

The purpose of such a database is to promote the access to medicine and not to create the barriers. We therefore have concerns over the promotion of the IFPMA –WIPO initiative on patent database as a tool for medicine procurement. Such an approach raises concerns of conflict of interests. The primary interest i.e. the promotion of access to medicines can be compromised due to the secondary interest i.e. commercial interest involved in the patents and its potential to block the procurement of generic medicines. Therefore any projection of the IFPMA-WIPO database as a procurement tool should be avoided. We call up on MS to discuss the issue in the upcoming session of the SCP and suggest measures to avoid conflict of interests.

Thank you.


3.         Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) (Agenda Item 15)

Thank you Mr. Chair.

The experience of countries such as Uruguay and Australia with regard to de-branding of tobacco products shows that transnational corporations can threaten measures to protect public health by using trademark protection.

We would like to reiterate our statement made last year that de-branding is also discussed as measure to promote public policies in the context of medicines, food products, products targeting children etc. We call upon MS to initiate discussions on trademarks and public policies.

We think trademark issues related to country name are an important issue. Registration of country names registration and use as trademark would result in misappropriation. Therefore it is important that MS address this issue effectively in the SCT.

Similarly, the proposal on design protection for new technological designs needs more information regarding the implications of such protection. Therefore there is need for a detailed study on the implications of such protection before any decision with regard to norm setting in this area as mandated by the Development Agenda.

It is also important for the SCT to discuss the role of trademark in value chains and its implications for development.  In the value chain trademark plays an important role and it is important to understand that role of trademark, which would enable MS to come up with policy responses.

Thanks you.


4.         Matters Concerning the Convening of a Diplomatic Conference for the Adoption of a Design Law Treaty (DLT) (Agenda Item 16)

Thank you Mr. Chair.

It is quite unfortunate that MS have not discussed the issue of DLT since the last GA.  A new proposal tabled on the disclosure requirement a year ago and which holds the support of a critical number of MS has not been given due consideration. This goes against the principle of an inclusive and participatory process as mandated under the Development Agenda. 

It is also worthwhile to note that there was no mandate from the WIPO governing bodies to start the norm setting activities related to DLT.

Against this background we call upon MS to respect the decision of GA 2015 and take the outstanding issues to the next two sessions of the SCT in order to reach a consensus.

Thank you.


5.         Committee on Development and IP (CDIP) (Agenda Item 17)

Thank you Mr. Chair.

The Development Agenda (DA) is essential for WIPO to maintain its credibility and legitimacy to remain as a UN Specialised Agency. The relevance of DA has increased more than ever after the adoption of the SDGs. There is ample evidence now available in the public domain to show that excessive protection and enforcement of IP retards the development.

As stated in the UNCTAD Trade and Development Report 2017: “There is evidence in evolving IPR frameworks of a growing bias towards the excessive protection of private investor interests, often at the expense of wider public interests. The use (and abuse) of IPRs (patents, copyrights and trademarks) has become one of the main means of enhancing market power, and thereby generating and appropriating more and higher rents”. Therefore, it is important for the WIPO Secretariat and the Member States (MS) to see the writing on the wall and recalibrate their approach on IP instead of anchoring their approach towards IP on propaganda rather than evidence.

MS deserve congratulations for the inclusion of the standing agenda item on IP and development in the CDIP. At the same time it is a reflection of the attitude of a section of MS towards the legitimate concerns related to IP and development. It took 10 years for CDIP to agree to the inclusion of an agenda mandated by WIPO General Assembly in 2007.

We take this opportunity to flag again the following weaknesses with regard to the implementation DA.

First, it is implemented in a project mode. After the completion of the project what happens? There is no clarity. There are certain good findings in studies or reports commissioned by Development Agenda projects. However, there is no mechanism to incorporate these into WIPO’s activities.

Second, there is littlie mainstreaming of a development-oriented approach to WIPO’s activities. Currently WIPO’s activities are going business-as-usual but packaged as DA.

Third, the current governance structure of WIPO slows down the mainstreaming of DA. Reform of the governance structure is critical for the effective implementation of DA and to reorient WIPO to a development-oriented approach. There should be firewalls to avoid the conflict of interests among various divisions of WIPO especially between its IP service activities such as PCT, Madrid Protocol etc. and technical assistance and legislative advice functions. 

Thank you.


 

6.         Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) (Agenda Item 18)

Thank you Mr. Chair.

We view IGC process as an important process to address the misappropriation of genetic resources, traditional knowledge and traditional cultural expressions through intellectual property protection.

We appreciate the fact that the IGC in its last session reached a consensus with regard to the extension of the work of the Committee. However, it is unfortunate that MS could not reach consensus on the mandate and work programme.

The GA in 2009 provided a two-year exclusive mandate for IGC for text-based negotiations. This mandate was renewed periodically.

We call upon the Chair of IGC and Member States (MS) to stick to the mandate of the ICG and focus on text based negotiation. However, it is regrettable that certain MS continue to question the already agreed objective, i.e. reaching an agreement on an international legal instrument.  We believe that the objective of the text based negotiation is to reach a consensus on the international legal agreement i.e. treaty and not a soft law instrument.

In this regard the African Group’s proposal clearly offers a direction to move forward. The mandate should clearly mention the binding nature of the legal instrument.

Regarding the work program we agree with the African Group proposal for a deadline for convening a diplomatic conference on GR text and TK and TCE text in the coming days. The stand that nothing is agreed if everything is not agreed is unknown to WIPO. This may even lead to establishing such linkage with regard to other text-based negotiations currently in progress in other committees.  Therefore, we call up on MS not to block the aspirations of the vast majority of MS, representing the vast majority of humankind.

Thank you.


7.         Advisory Committee on Enforcement (ACE) ( Agenda Item 20)

Thank you Mr. Chair.

As we mentioned in our pervious years’ statements, IP enforcement is often pushed in countries through propaganda without any verifiable evidence. One of the best examples is the case of counterfeit medicines. 

The issue of quality of medicine is often conflated with IP protection (a private right) to pursue IP enforcement (by the State). As a result, scarce public resources have been deployed to enforce a private right. More than 25 years of the propaganda has promoted scare among people. Anti-counterfeit medicine campaigns often state: counterfeit medicines kill the patients. 

As a result, all infringement of trademark or IP (counterfeit) has been attributed to the bad quality of medicines.  Indirectly it conveyed a message that even generic medicines are counterfeit.  At the peak of the campaign, nearly 17 medicines shipments in transit were seized in European Union ports. International organisations including WIPO used inflated data provided by the pharmaceutical industry or associated entities. It also gave an impression to consumers that there is a high prevalence of medicines produced by unlicensed manufactures, which carries the name of licensed product. 

To put an end to this wrong approach, the last World Health Assembly in May 2017 took a decision to drop the term “counterfeit” from the WHO’s nomenclature to refer to medicines of compromised quality.  We call upon the WIPO Secretariat and the MS to take note of this decision and stop conflating IP issues with the quality of medicines. The Secretariat should use the term counterfeit only to refer to those medicines, which fall under the definition of counterfeit provided under the TRIPS Agreement. Accordingly the Secretariat should stop using the inflated data on counterfeit medicines.

Lastly, IP enforcement is not black and white; excessive enforcement can result in infringement of human rights. Therefore the Secretariat should convey this message in their capacity building programs.

Thank you.

 


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