TWN Info Service on WTO and Trade Issues (Sept09/23)
30 September 2009
Third World Network

Developing countries voice "development concerns" over WIPO
Published in SUNS #6781 dated 29 September 2009

Geneva, 28 Sep (Sangeeta Shashikant) -- Several key developing countries have voiced a variety of development-related concerns at the annual meetings of the member states of the World Intellectual Property Organization (WIPO) over the WIPO management as well as the organization's programmes and activities.

These concerns surfaced in opening statements made by developing countries during the first three days of the annual WIPO Assemblies, which is meeting from 22 September to 1 October. A high-level Ministerial segment was also held on the first two days of the Assemblies.

The opening statements of Ministers, Ambassadors and Heads of Delegation of several key developing countries broadly stressed on the need for WIPO to contribute towards achieving the Millennium Development Goals (MDGs); to realign WIPO's mandate to the broader objectives of the UN; on conducting impact assessments of WIPO's works; and the need for systemic changes in WIPO that would ensure greater transparency of WIPO's activities, accountability to its Members and refocus its culture to one with a development orientation.

The opening statements also addressed several key issues that are before the WIPO Assemblies for discussion. These include renewal of the mandate of the Intergovernmental Committee (IGC) on Genetic Resources, Traditional Knowledge and Folklore; the work-programmes of the Advisory Committee on Enforcement (ACE); the Committee on Development and Intellectual Property (CDIP); Patents Committee (SCP); Patent Cooperation Treaty (PCT) Working Group; and the Copyright Committee (SCCR).

The Deputy Minister, Ministry of Trade and Industry of South Africa, B. M. Ntuli, emphasized that WIPO should be guided by development-related commitments and resolutions and contribute to the MDGs. As a standard setter on intellectual property (IP), WIPO has a significant role in ensuring that IP rules support development objectives. Ntuli added that international treaties require balancing of Members' interests on a fair and equitable basis. A one-sided approach undermines the value and benefit that countries expect from participating in WIPO and that such treaties must have a positive impact on developing countries.

The South African Minister stressed the importance of UN agencies dealing with development issues to operate in a coherent manner. Despite the conclusion of the WIPO Development Agenda (DA), Members should not be afraid to revisit WIPO's mandate to properly align it with the broader objectives of the UN. The Minister added that WIPO should play a meaningful role in advising Members about the implications and dangers of renouncing rights provided for by the TRIPS Agreement.

With respect to the IGC, Ntuli said that it was unfortunate that there was no breakthrough on the matter. Ntuli supported renewal of the IGC's mandate according to the African Group's proposal (which sought text-based negotiations and international legally-binding instruments), adding that there was a sentiment that the matter was not taken seriously by WIPO. In relation to the ACE, Ntuli cautioned against focusing on enforcement issues. The ACE should not be implemented in a manner detrimental to developing countries or undermines their ability to advance pertinent development issues.

The Minister for Industry, Trade and Marketing of Tanzania, Dr. Mary M. Nagu, raised the issue of IP and access to medicines. She said that access to patented and branded drugs, due to their associated costs, is beyond the ability of the majority of those in need and that access to generic antiretrovirals (ARVs) through the TRIPS Agreement's flexibilities is the only available option. She also referred to the Doha Ministerial Declaration that extended the transitional period for LDCs to implement the TRIPS obligations on pharmaceuticals from 2006 to 2016, saying that this had an advantage for the LDCs that have started manufacturing generic ARVs for domestic use and export.

The Deputy Minister of Commerce, Trade and Industry of Zambia, Richard T. Taima, said that the IGC deliberations demonstrated that some developed countries were opposed to any effective means of protecting genetic resources, traditional knowledge and folklore. He appealed for agreement on a legally-binding framework on the matter.

On the road map for the PCT, he cautioned against harmonization of substantive laws, mandatory effects of international search reports in the national phase and legal presumption of validity, adding that the Secretariat should clarify certain terms in the road map, especially the general principles that were envisaged to guide the future functioning of the PCT within its existing legal framework.

[The road map (PCT/WG/2/3) titled "The Future of the PCT" is a Secretariat document. It sets out principles and actions for reform of the PCT system. At the May meeting of the PCT Working Group, several developing countries voiced concerns over harmonization of patent application, search and examination procedures, which resulted in deferment of the consideration of the road map. See SUNS #6698 dated 12 May 2009].
Ambassador Roberto Azevedo of Brazil said that it was in the best interest of all Members to preserve the role of WIPO in setting IP rules, principles and procedures, adding that initiatives outside WIPO lack legitimacy. Brazil favoured "multilateral approaches", and was "ready to contribute in building a work program that is balanced and capable of effectively addressing the multiplicity of interests and social and economic realities represented" in WIPO.

Referring to a statement made by Director-General Francis Gurry in his opening remarks in which he asked "... what does a Member State get out of being part of this Organization," Ambassador Azevedo said "Developing countries ask themselves the same question."

The Brazilian envoy said that the answer is to be found in the DA, and stressed that a key element to strengthening the role played by WIPO is to make progress in the implementation of the DA. Adjustments will have to be made in the very way in which WIPO has traditionally operated. In this context, Ambassador Azevedo stressed that a change in the organisation's culture will have to take place with the aim of not only providing for greater transparency and accountability across WIPO, but also allowing Member States to have a higher degree of control over the activities of the organisation.

He also pointed to the need for a systemic approach leading to the mainstreaming of the DA recommendations into the work of all WIPO's Committees. Towards this end, Brazil supported the setting up of a system for monitoring, coordinating, and assessing progress in the implementation of the DA recommendations. One of the pillars of the DA is undoubtedly capacity building. Brazil however believed that capacity building cannot be confined to ensuring compliance; capacity building goes much beyond that; it must enable developing countries to take advantage of the IP system.

To a large extent, the DA constitutes uncharted territory within WIPO, thereby requiring Member States to adopt a path-finding mind-set. "We have the challenge of learning on the run'. That is why methodologies used for implementing and monitoring the Agenda must remain flexible and open to adjustments as we make progress," Ambassador Azevedo said.

With respect to the IGC, the Brazilian envoy expressed hope that the IGC will be given a fresh and strong mandate for the negotiation of legally-binding instruments. On copyright matters, Brazil favoured further comprehensive discussions on limitations and exceptions. Achieving progress on talks about a legal instrument that makes access to education and culture possible for the visually impaired will be the ultimate test for the capacity of WIPO to live up to the UN values and to contribute to the attainment of the MDG goals.

In relation to ACE, Ambassador Azevedo said that results in combating infringement of IP can only be effective if they are sustained over time and if they touch on all the dimensions of this complex question, and contribute to the achievement of the objectives of the international system of IP as defined by the TRIPS Agreement. Against this background, it is imperative, for instance, to prevent abusive enforcement measures that do not respect the principle of territoriality and that create barriers to the legitimate trade of generic drugs, thereby de facto denying the right of access to medicine, said Ambassador Azevedo. He also signalled that Brazil was open to a balanced debate on the reform of the PCT.

Ambassador Hisham Badr of Egypt said that the discourse on IP has reached a level of maturity that leads to an increasing awareness of the need to approach IP from a comprehensive developmental perspective that links it with prioritized public policy concerns. IP discussions are increasingly based on objective foundations that acknowledge that demands for increased levels of protection can sometimes result in negative effects. This fact is most recently referred to in the UN report World Economic and Social Survey 2009, where it presents a critique of stronger levels of intellectual property protection in its analysis of technology transfer and the climate challenge, Ambassador Badr further said.

"It is naturally to be expected that this recent change in the nature of the discourse on IP should be reflected in WIPO's work," he added. The adoption of the DA and the first steps towards its implementation are but the beginning of the path towards realizing this aim, he further said.

In this regard, Ambassador Badr raised three points:

(i) the need for a firm conviction that the linkage of IP to development and implementation of the DA relate to all activities of WIPO including its substantive norm-setting committees, and do not relate only to technical assistance and capacity-building programmes. In this context, he referred to the ongoing quest to conclude an international legally-binding treaty or treaties for the protection of genetic resources, traditional knowledge and folklore.

(ii) to consider institutional reform of WIPO that encompasses its governing bodies and the various committees, including substantive committees, in a comprehensive framework that reflects the active participation by developing countries, and is guided by the principle of a member-driven Organization, since WIPO is considered to be among the oldest Specialized Agencies of the UN and as such, it is currently bequeathed with an institutional structure that reflects conditions that existed several decades ago.

(iii) in the midst of increasing challenges facing the international community, whether in development, or public health, or climate change, there is a need to consider how IP policies can contribute to their resolution, while ensuring that these policies do not contradict development and public policy priorities. Therefore, WIPO should broaden its research base in this area and adopt an objective and critical methodology, which reflects the positive and negative impacts, as well as the opportunities and constraints, that link IP policies with these global challenges.

Pakistan, in reference to the DA, pointed out that there needs to be a clear distinction between the DA programmes and the regular technical cooperation activities. This would entail a development orientation of policy and analytical work of the organization and pro-development outcomes of the normative discussions. The DA must not be reduced to an array of technical assistance activities merely duplicating what is already being done, though perhaps on a larger scale, Pakistan added.

Pakistan expressed concern over the "continued impasse" with regards to the IGC, adding that this may have repercussions on other normative initiatives in the organization. It also added support to renewing the mandate of the IGC that supports text-based negotiations on a legally-binding instrument within well-defined time frames.

On the issue of patents, Pakistan voiced the need to rectify shortcomings in the patent system that stifle innovation and impose high costs on developing countries in acquiring and developing new technologies. It added that while WIPO aims for enhancing the efficiency of the patent regime, it should not be at the cost of compromising available flexibilities and policy space and that any such measures should not be rushed through and should be thoroughly deliberated.

Pakistan was also supportive of progressing on exceptions and limitations in the area of copyright to contribute to granting access to education and scientific material. With regard to enforcement, Pakistan expressed concern over the "one-dimensional approach" of stricter enforcement measures that still characterizes the issue.

India stressed on the need to find resources for implementing the DA recommendations. On the issue of the PCT, India said that it was essential that procedural reforms respect the core of the PCT Treaty, which provides for sovereign rights. It is also pertinent to keep in mind that WIPO Members are at different levels of development, and thus efforts at streamlining and harmonization of procedures across patent offices of the world need to recognize the reality of countries being at different stages of development. Developing countries need their national space and pace for evolving their IP system and capacities, India added.

India also strongly supported the renewal of the IGC's mandate to undertake text-based negotiations with the objective of developing a legally-binding international instrument on genetic resources, traditional knowledge and folklore. India also said that there are efforts to undermine the flexibilities available under the TRIPS Agreement by stretching the definition of counterfeiting to prevent the flow of affordable and genuine generic drugs to the poor in the developing world which would adversely affect the perception of legitimacy of the global IP framework.

On the issue of copyright, India said that there was a need to bring in positive international obligations to facilitate access by disabled groups to copyrighted material and supported moving forward with internationally-binding obligations to protect the disabled.
On the issue of protection of broadcasting organizations, India said that it would be willing to engage in any constructive discussion to achieve an agreement on the nature, scope and object of protection of broadcasting organizations.

Indonesia, with respect to the issue of PCT reform, expressed concern over attempts towards de facto harmonization of patent law. Efforts towards harmonization of substantive patent law should not be the focus of discussion in that forum, it added.

Indonesia also expressed concern over proposals before the WIPO General Assembly to develop a new Committee on Global IP Infrastructure. "We should not too rush to establish the said committee without allocating sufficient time and thorough exchange of views on the proposal, especially to take into account the concerns of the many developing countries and the least developed amongst them," said Indonesia. +