TWN Info Service on WTO and Trade Issues (Sept09/20)
28 September 2009
Third World Network

The WIPO Assemblies began on 22 September 2009. Below is the first news story on the Assemblies that will continue until 1 October 2009.  


Sangeeta Shashikant
Third World Network

WIPO chief's agenda raises development concerns
Published in SUNS #6778 dated 24 September 2009

Geneva, 23 Sep (Sangeeta Shashikant) -- The Director-General of the World Intellectual Property Organization (WIPO), Francis Gurry, on Tuesday presented his vision for the organization, which includes further norm-setting in the area of copyright to accommodate the concerns of right-holders in the digital age and the adoption of his controversial proposed Patent Cooperation Treaty (PCT) road map which would move in the direction of removing many of the checks and balances needed for development.

The WIPO chief laid out his vision in his opening statement at the forty-seventh session of the WIPO Assemblies, which is meeting from 22 September to 1 October to review the organization's status of activities and discuss future work.

On both the issues of norm-setting in the area of copyright and the proposed road map for the PCT, the vision is underlined by the view that otherwise WIPO may become irrelevant as a result of on-going bilateral and plurilateral initiatives.

The vision also includes renewing the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and on terms that will provide grounds for the developing countries to believe that tangible solutions at the international level to deal with misappropriation of genetic resources, traditional knowledge and folklore are close.

Gurry also stressed, albeit without much elaboration, on the need for "ambitious" projects pertaining to the Development Agenda and on the need "to agree upon a coordination mechanism that establishes a seamless relationship between approval of projects, budgeting and monitoring".

National innovation and intellectual property (IP) strategies were also highlighted by Gurry as the main basis for WIPO to deliver technical assistance to countries.

In a context where developed countries are the main holders of intellectual property rights (e. g. patents), and thus exporters of IP, and developing countries are mainly importers of IP and the main victims of "access", several of Gurry's priorities raise concerns from a development perspective and may result in controversy.

On norm-setting, Gurry noted that the "normative agenda... is not progressing". He said that "the rate of progress in norm-making is in inverse proportion to the rate of technological change". This, in his view, "poses several major risks" for WIPO. He added that WIPO will "lose its role in economic rule-making", and "multilateralism will suffer and recourse to bilateral and plurilateral solutions may become more frequent."

Gurry said that "Global use of technologies calls for global normative architecture".

The Director-General then linked making rules for the latest advances in technology with rules on traditional knowledge (TK), adding that WIPO "must be able to deal with all".

On the issue of TK, Gurry appealed for a show of "flexibility and understanding that is necessary to renew the mandate of this Committee on terms that will provide grounds for the developing countries, in particular, to believe that tangible solutions at the international level to the unfair misappropriation of traditional knowledge and traditional cultural expressions are close".

The issue of TK is expected to be one of the most controversial issues to be discussed at the Assemblies, as Members have to take a decision on renewing the mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore that was established by the WIPO General Assembly in October 2000.

The Intergovernmental Committee (IGC) presently has the mandate to focus on the "international dimension" and "no outcome of its work is excluded including the possible development of an international instrument or instruments". However, in the last nine years, nothing substantive has emerged from the IGC as a result of resistance from the developed countries, in particular, the US, Japan, the EU and Australia.

At the last session of the IGC in July 2009, the African Group submitted a proposal (supported by most other developing countries) for the renewal of the IGC's mandate, with calls for text-based negotiations, the establishment of a defined work programme, time-frames including for inter-sessional work sessions, and a diplomatic conference to expedite work on the development and adoption of an international legally-binding instrument for genetic resources, traditional knowledge and folklore.

However, no agreement was reached on the IGC's mandate since developed countries were opposed to any text-based negotiations or an international legally-binding instrument on the matter.

According to some African delegates, these differences persist and will emerge as the agenda item is discussed during the Assemblies.

The second normative area that Gurry focussed on was copyright in the digital environment. He said: "We are witnessing the migration of most, if not all, forms of cultural expression to digital technology and the Internet - music, film, news content, literature and broadcasts of cultural and sporting events". He added that "they do signal a challenge for the institution of copyright".

Gurry further said that "The evidence suggests that the current means are suffering severe stress", and that "according to industry estimations, 40 billion files of music were illegally file-shared on the Internet in 2008, a piracy rate of 95%".

"I am not too sure that the impact of these tumultuous developments in digital technology can be dealt with by way of negotiation of individual issues in one of our Standing Committees. These developments are too fundamental. They concern a question of major importance to the whole world, which it is not an exaggeration to characterize as the financing of culture in the 21st century," he added, suggesting "the possibility of some form of global consultation and reflection on this question".

Gurry's intervention on norm-setting in the copyright area appears to want to import contentious ongoing discussion, in and among developed countries, pertaining to copyright protection in the digital age that favours specific copyright holders in developed countries.

The intervention also reveals a bias towards norm-setting in the interest of right-holders based on data produced by the right-holders. No mention is made of possible norm-setting in the area of exceptions and limitations to copyright that would benefit users/consumers and the general public, although the issue of norm-setting in the area of exceptions and limitations has dominated the agenda of the Standing Committee on Copyright and Related Rights in its past two meetings. There is also a treaty proposal on access to published works on the part of the visually impaired supported by a group of developing countries.

Gurry also stressed the Patent Cooperation Treaty (PCT) Road Map as a project of "great significance". He emphasized that it was not a "norm-making exercise" since the PCT and the Road Map is about "improving the functioning of a procedural treaty that links together the patent offices of the world", adding that "it is about finding ways to increase work-sharing, to decrease unnecessary inefficiencies, to improve the quality of output of the international patent system and thereby contribute to the management of the unsustainable backlog of 4.2 million unprocessed patent applications in the world."

The PCT Road Map was presented by the Secretariat at the May session of the PCT Working Group and contained actions to be taken to reform the PCT system. The PCT system allows an applicant to seek patent protection for an invention simultaneously in many countries by filing an "international" patent application.

However, at the May session, several developing countries raised concerns that the Secretariat's Road Map moved in the direction of removing many of the checks and balances needed for development. The Road Map proposed inter alia the removal of reservations to PCT Articles and Rules made by members in exercise of their rights under the PCT; and promotes greater coordination in such a manner that the work of a few patent offices designated as International Searching Authorities (ISA) determines the outcomes of the national examination substantially by raising a presumption of validity of patent applications examined by the ISAs.

As a result of these concerns, the May session did not approve the Road Map and sought more time to study the need for, and content of, such reform. It also highlighted the need for the 45 Development Agenda (DA) Recommendations to be considered in any move towards PCT reform.

The PCT Road Map is seen by many as Gurry's "pet project", thus the strong push by the Secretariat for the adoption of the road map.

In his report to the Assemblies, Gurry also mentioned "counterfeit" and explained that it meant "fake and deceptive". This is in total disregard of the fact that counterfeit is defined in the TRIPS Agreement and in the national laws of many countries as pertaining to trademark infringement. He added that he saw WIPO moving "gradually" to a dialogue on "ways and means of dealing in a practical way with the misuse of intellectual property to sell fake products".

In relation to climate change, the Director-General said that "There is a perception that intellectual property may be a negative influence in the range of policy initiatives that are needed to deal with climate change", but that he "did not believe that this perception corresponds to reality". He further added that "it is difficult to imagine how a property right on an individual piece of technology could constitute an obstacle".

He however acknowledged that "Transfer of technology is thus fundamental to effective action. The policy challenge of shepherding, through a public process, the transfer of such an extensive range of technology held in private hands, is daunting and frankly has never been achieved before".

There is clear evidence of an upward trend in the patenting of climate-related technologies since the mid-1990s and entities of industrialized countries hold most of the technology. This raises fundamental questions as to whether developing countries will be hampered in their ability to gain, on reasonable terms, timely access to latest mitigation and adaptation technologies as well as the associated know-how. IP has been identified as being one of the barriers to accessing climate-friendly technologies by developing countries (the Group of 77 and China), who have submitted proposals within the context of the climate negotiations to overcome the IP barrier.

With regard to the Development Agenda, Gurry said, without much elaboration, that it was time to "transform that idea into an operational reality", stressing the need to be more "ambitious" and "to identify and execute projects that make a difference and that are not just a continuation of standard technical assistance under another guise".

He further stressed on the "need to agree upon a coordination mechanism that establishes a seamless relationship between approval of projects, budgeting and monitoring".

The issue of a coordination mechanism was particularly contentious at the last meeting of the Committee on Development and IP held from 27 April to 1 May 2009, as Group B (composed of developed countries) was not agreeable to consider any such mechanism.

However, it is anticipated that several developing-country delegations will stress the importance of deciding on coordination mechanisms as well as modalities for monitoring, assessing and reporting on the implementation of recommendations at this Assemblies during the agenda item on the Development Agenda. +