TWN Info Service on WTO and Trade Issues (July08/18)
21 July 2008
Third World Network

Below is the second article on the WIPO Development Agenda meeting. It was first published in SUNS #6518 Wednesday 16 July 2008 and is reproduced here with permission.

Best Regards
Sangeeta Shashikant
Third World Network

Different views as WIPO strives to implement Development Agenda
Published in SUNS #6518 dated 16 July 2008

Geneva, 15 July (Riaz K Tayob and K M Gopakumar) -- The implementation of the adopted recommendations on the WIPO Development Agenda was discussed last week at the second session of the WIPO Committee on Development and Intellectual Property (CDIP).

Of the total of 45 adopted recommendations, the meeting discussed proposed activities linked to 15 of them.

In the first part of this article (published in SUNS #6517 dated 15 July 2008), the discussion on some of the 15 recommendations was reported on. The following is a report on some of the remaining recommendations.

On recommendation 8 (develop agreements with institutions for access to patent search databases), the WIPO Secretariat proposed to conduct a study and implement strategies to enhance their access and use including through a pilot initiative, training and establish IP Advisory Service and Information Centres in developing countries. In an informal paper, it presented terms of reference that includes conduct of a needs assessment, which lists possible issues and preparation of recommendations.

For recommendation 9, a database to match states' needs with available resources, the Secretariat proposed to establish an "effective diagnostic tool" for assessing the IP-related development needs of countries. It also proposed other mechanisms for regular collection of information on potential donors as well as their available funds and expertise for WIPO to match with specific IP development needs.

The US questioned the use of the term "effective diagnostic tool." It said that more precision was needed as nowhere was there reference to such a tool. It wanted to know how it related to the recommendation. It understood the diagnosis to be a self-identification process with a "relatively neutral market place" mechanism that matched the needs with the donor.

Brazil enquired and the Secretariat affirmed that a state can request technical assistance, asking WIPO to assist with the diagnosis. South Africa said that it may be difficult for developing countries to see what practically needs to be done, and WIPO can assist them.

Spain observed that there is an overlap of proposed activities which should be clarified in light of budget implications. Secretariat representatives said that the risk of overlap looms large and that development is holistic and this risk is always there. It clarified that effort is made to avoid overlapping. At the behest of the Chair, it was agreed that the term "effective interactive process" be used instead of diagnostic process to match needs and available resources.

Recommendation 10 is to improve IP institutional capacity and infrastructure and this includes through training in corporate governance, streamlining administration and the use of software.

The programs include policy development, development of national IP strategies, legal assistance to developing countries and LDCs, developing capacity for management of IP and public policy objectives, strengthening support for Small, Medium Enterprises, and strengthening and modernization of IP institutions. Under the latter, some of the expected outcomes seem to reflect issues that provoked extensive discussion at the Standing Committee on Patents, namely, improved efficiency, shorter processing time and reduction of backlogs.

China and Tunisia expressed concern about the financial allocation to institutional capacity for the development of infrastructure and other facilities. Brazil was also concerned that the figures provided were "on the conservative side."

Some developed countries raised concerns about the use of WIPO resources on the Development Agenda. To this, Tunisia pointed out that this is the CDIP and not the Programme and Budget Committee (PBC). Our only concern really is to look at programmes and what is needed to implement them, taking into account the costs. This will be sent to the PBC which will separately evaluate it.

Recommendation 20 seeks "to promote norm-setting activities related to IP that support a robust public domain in WIPO's Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions."

The secretariat briefed the committee on various activities undertaken in four areas: trademark, copyright, patent and traditional knowledge and genetic resources. It explained that activities concern information. Patents and information are two sides of the same coin. Activities seek to disseminate patent information concerning the scope of protection, duration of protection of specific technology, and geographic coverage. Access to and use of the public domain was read as whatever is available and accessible.

The Secretariat stated that the public domain debate under copyright law traditionally focused on the availability of works not protected under copyright. The new approach is to ensure access to copyright work, which is very important for access to knowledge. According to the Secretariat, the activities are to promote deeper understanding of problems in the field of copyright to identify public domain material. It also proposed the development of a database containing a repertoire of public domain materials.

Developed countries, especially the US and France, opposed the proposal of development of database, which they said involves enormous tasks and therefore it should not proceed without having proper understanding on the tasks involved.

The Chair proposed the replacement of the word "development of database" with "study the issue". Brazil observed that the public domain is important o promote access to knowledge and the objective of the database is promote access particularly in the digital society. Brazil advocated for "more than a study" as a study could simply sidetrack an interesting idea.

France remarked that mention of the Standing Committee on Patents (SCP) under proposed activities here in the IWD (initial working document) is an "interference" in the workings of other committees. Switzerland also questioned it. Brazil responded that development is an overarching issue and should be reflected in the work of other committees. Such reference is not interference but only an effort to link the committee's work with development.

Chile stated that enriching the public domain is the way forward to making the social contract more effective, adding that the objective of this recommendation is to promote normative activities supporting a strong public domain and this should not be lost sight of. It understood the activities to include the preparation of guidelines for the preservation of the public domain.

At Brazil's submission, the proposed activity on the "introduction of worldwide definition of prior art that would prevent encroachments on the public domain" was deleted. Brazil had said that wording pushes us into the issue of patent harmonisation, which is a very controversial issue, to say the least.

On recommendation 22 in the PWD, WIPO's norm-setting activities should be supportive of the development goals agreed within the UN system, including those contained in the Millennium Declaration.

The WIPO Secretariat, without prejudice to the outcome of Member States' considerations, should address in its working documents for norm-setting activities, as appropriate and as directed by Member States, issues such as: (a) safeguarding national implementation of intellectual property rules; (b) links between IP and competition; ( c) IP-related transfer of technology; (d) potential flexibilities, exceptions and limitations for Member States; and (e) the possibility of additional special provisions for developing countries and LDCs.

The mechanisms proposed by members of the Friends of Development (FOD) ranged widely during the discussion in an attempt to secure consensus. They included proposing that the CDIP Chair send other WIPO bodies a letter informing them of the adoption of the Development Agenda, and on the other hand, requesting the Secretariat to inform the CDIP on the implementation of the agenda in other bodies.

The Chair's Summary now urges the General Assembly to encourage WIPO bodies to effectively implement the Agenda. The relationship of the CDIP with WIPO and its bodies will also be discussed at the next CDIP for reporting to the following General Assembly.

Argentina, for the FOD, said that recommendations 15, 16, 19 and 21 were also relevant here. It asked the Secretariat to report on implementation, particularly of these recommendations to each CDIP meeting. It proposed that letters be sent to the Chairs of all the other WIPO bodies containing this recommendation and to incorporate it in its rules of procedure.

The US said that the CDIP was finding its voice and this year we operate under the mandate of the General Assembly to coordinate work with other committees, bearing in mind that we had extensive discussions of this relationship at the first meeting. It found it troublesome that this committee would intrude itself in the rules of procedure of other committees and found it unacceptable.

Responding to this, several developing countries expressed a strong preference in favour of some relationship and could not accept the US position.

South Africa said that this recommendation was very important. It attempts to bring some form of balance to the IPR system by preserving the flexibilities that exist in TRIPS or created recommendations that recognize that countries are at different stages of development. The recommendation is a result of proposals submitted from the Africa Group and the FOD informed by the treaty-making processes.

In these processes, we found it difficult to propose some of the issues related to development, South Africa said. In the copyright committee (SCCR), for instance, the issues we brought forward were sidelined into a non-paper and it took too long to integrate the non-paper to form part of the treaty.

Another example was the difficulty at the Singapore Conference on Trademarks where these (development) issues were not acceptable. Benefit for all countries is important for the legitimacy of agreements in the multilateral system. It did not feel that the CDIP's work was intruding on the work of the other committees as states have the right to propose whatever they want to propose.

The issues here are not mandatorily to be integrated into treaty making. It does not help to conclude treaties that are not really relevant for developing countries as treaties should be balanced and take into account the different levels of development of all its parties, South Africa added.

Discussions followed on recommendation 22, "WIPO's norm setting activities should be supportive of the development goals agreed within the UN system, including those contained in the Millennium Declaration."

The WIPO Secretariat, without prejudice to the outcome of Member States' considerations, should address in its working documents for norm-setting activities, as appropriate and as directed by Member States, issues such as: (a) safeguarding national implementation of intellectual property rules; (b) links between IP and competition; ( c) IP-related transfer of technology; (d) potential flexibilities, exceptions and limitations for Member States; and (e) the possibility of additional special provisions for developing countries and LDCs.

Brazil said that recommendation 22 was perhaps the most important of the development agenda to bring IP into the mainstream of the UN system. There is conceptual linkage between the UN development goals and the Development Agenda and is important for both developed and developing countries. CDIP must not aspire to monopolise the debate because it is cross-cutting and transversal, it said.

On norm-setting activities, everyone should follow and adhere to the principles that we have consecrated. These principles are important not only because they have an interface with development, they are part of the IP agenda. Limitations and exceptions, for instance, are part of the discussions in IP itself. Member states have to find a way to give concrete expression (to the principles) in norm-setting, Brazil said.

Algeria emphasised the importance of this recommendation and said that it gave a clear idea of the essence and objectives of development and to mainstream the development activities of WIPO. These recommendations concern all the activities of WIPO. In suggesting that the General Assembly take them into account, we would not be surpassing our mandate.

It said that we are not giving it directly to any committee. We are recommending to the General Assembly that the different divisions of WIPO take their content into account. The Africa Group also supported requesting a report on how WIPO was contributing to achieving the MDG in normal activities on norm-setting.

Japan said that it cannot support the FOD proposal. Discussion on norm-setting takes place in specialised committees. It understood that CDIP is not in a position to give this to (other) committees.
Tunisia reiterated that the CDIP process is about implementation and not a review or revision of the recommendations. They constitute balance that is delicately found. Similar to a construction where all blocks are mutually sustaining, removing or attaching one and the entire construct may collapse. Mainstreaming development is a matter that needs the full involvement and participation of all WIPO committees and working groups.

These organs might not be systematically aware of the recommendations and the role they should play to ensure their implementation. We support the recommendation to the General Assembly that WIPO bodies take more into consideration the development aspect in deliberation and activities. According to experience in another WIPO committee, the development dimension seems not to be fully taken care of and a reminder from the General Assembly might be useful.

Chile supported the FOD proposal and said that while CDIP did not have a mandate to directly instruct other bodies what to do, it also supported Tunisia to find the best way to reach them, i. e. a recommendation from the CDIP to the General Assembly so that it, in turn, sends the instruction to the relevant bodies at WIPO.

France, for the European Communities, said that it was not necessary to lose sight of the mandate of the committee and states should respect the Terms of Reference of the committee. We risk interference in the work of other committees. It was important to continue discussion on this matter.

Cuba said that this recommendation was the essence of the Development Agenda, to cover all the activities of WIPO. China supported the Africa Group and Brazil. The issue was to make available policy space for developing countries and development should be tackled seriously by WIPO bodies. Developing countries lag behind developed countries and we have to ensure that they have more margin for manoeuvre.

Jamaica supported Brazil and said that the CDIP does not intrude on the work of others per se. Invariably, it touches their work but promotes coherence in the development approach within the context of the UN development goals. The primacy of development cannot be established without addressing other bodies.

Pakistan said that all committees should be instructed to mainstream development.

The US sought to "clear up some confusion" after these interventions. It said that it believes that CDIP work is to implement the recommendation and consider activities. If there is the impression that the US disagreed with recommendation 22 or was revisiting it, it wanted to make it abundantly clear that this was not the case. It supported colloquia on a few precautions (which it would apply to other activities as well). The colloquia should be based on recent, sound expert scholarship, be balanced taking into account all viewpoints and must be public policy neutral, confined to informing the policymaking process in WIPO to advance the broader objectives of the CDIP.

The US then said that the way to enhance economic development was through IP. The committee through discussion based on the persuasiveness of ideas, should seek to reach agreement through concepts and thoughts. It should produce a clear and rich record rather than exporting particular elements to other WIPO bodies.

Russia said that to implement the recommendations successfully, we need to act within the framework of existing rules.

The Chair said that Recommendation 22 had the support of members. First, it is a foundation that cannot be moved. Second, we have looked at activities and seen how it should be done. The proposed activities as outlined are accepted. Third, the FOD has requested correspondence to other chairs. The Chair said that he was neither persuaded that this was necessary nor desirable. He was not sure that this was the right thing to do at this stage.

However, what the FOD said can be included in the recommendation to the General Assembly. We already have on the record that the 19 recommendations (that can be immediately implemented) calls on members, the Secretariat and other relevant WIPO bodies to ensure the immediate and effective implementation of the recommendations, he said.

Brazil then clarified further its views on the recommendation and the activities proposed by the Secretariat. They have merit but reflect the recommendation in a very abstract manner. It supported the Africa Group proposal for a WIPO MDG contribution report. Also, it proposed a global forum on IP and development to really try to give concrete expression about the idea of the cross-cutting nature of development.

Argentina, for the FOD, said that it was important to include assessments of how the recommendations are being implemented at WIPO and that the CDIP receives reports for its meetings. Tanzania said that the chances of encroachment on other (committees' activities) is minimal as these activities complement each other.

France, for the EC, said that it was willing to study the best way to implement the proposal and that discussion later would be useful if the proposal is reflected in a new version of the document.

The Chair said that what comes back to this committee will be updated with resource implications and only then will the CDIP go to the stage of agreement.

Discussions proceeded also on Recommendation 23, to consider how to better promote pro-competitive IP licensing practices, particularly with a view to fostering creativity, innovation and the transfer and dissemination of technology to interested countries, in particular developing countries and LDCs.

The Secretariat proposed a global meeting on emerging copyright issues covering issues on open source software and creative commons licenses.

Responding to a query from Brazil as to whether these issues belonged to the IP system, the Secretariat said they do. Creative commons is an example of the exercise of rights on derivative works under the Berne Convention.

Indonesia proposed that activities cover IP and not just copyright. China proposed activities on patent licensing in addition to those proposed.

France said that activities on franchises did not fall within the framework of IP. The US said there are competing models to exploit licensing arrangements. IP is a system of private rights. It reiterated its three precautionary conditions on the activities. Botswana supported activities on franchises. Pakistan emphasised the importance of Transfer of Technology. It asked if the proposed technology transfer database included a list of technologies available for licensing.

On competition, Nuno Pires de Carvalho from the Secretariat said that IPRs are pro-competitive unless a bilateral or unilateral act transforms it into an anti-competitive tool.

Chile said that competition in the recommendation pursued an objective that is different from that presented by the Secretariat. The point is not to find how IP when applied can be abused, but to find new forms of using IP and how best to promote competition. It is not just about avoiding anti-competitive (practices) but also about a different license granting system.

Chile also responded to Carvalho that if, as according to his definition, IP were pro-competitive, then there would be no need to go into this recommendation. All we would have to do is increase the level of IP protection, and there would be a more pro-competitive situation, and everything would be okay, according to Carvalho's concept. Chile wanted a focus on the spirit on the recommendation.

Carvalho said that this appeared to be talk about revising the recommendation. He wanted to know if the recommendation was being expanded to areas outside (of its scope). One can say the glass is half empty or half full, should we narrow or broaden it to encompass other areas.

(* This is the second part of a two-part article on the WIPO meeting on the Development Agenda last week. The first part was published in SUNS #6517 dated 15 July 2008.) +