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TWN Info Service
on Intellectual Property Issues (Dec08/02) Best regards WIPO:
South countries upset that new WIPO budget downplays development
The controversy is over the immediate two-year budget and programme of the organization. The underlying issues are whether resources are being prioritized to have WIPO operate “business as usual” in promoting intellectual property, or whether priority will be given to operationalising the decisions to make WIPO development-oriented, by placing IPR matters in the context of the public interest, especially the development of developing countries. Officials of several developing countries are concerned about the “Revised Program and Budget 2008/2009” (Revised P&B) recently issued by the WIPO Secretariat. This document will be discussed at the meeting of the WIPO and Program and Budget Committee (PBC) on 10-11 December, to be followed by an extraordinary session of the WIPO General Assembly on 12 December. The officials, as well as independent analysts, are concerned that the Revised P&B (WIPO document WO/PBC/13/4) pays lip-service to development issues in particular the implementation of the Development Agenda (DA), a programme initiated by many developing countries to reform WIPO to be more development-oriented as well as the significant substantive and budgetary changes presented in the Revised P&B in relation to the Strategic Goals, the programs under the goals and the short period within which members are expected to consider these changes. A South Centre analysis estimates that the budget share for development activities is decreased by about 15.5% in the Revised P&B in comparison to the P&B approved at the WIPO General Assembly in March (GA/44/2). An independent analyst based in a developing country, who has been following WIPO developments, after comparing the approved and the revised budgets, said that the priorities identified by Mr Francis Gurry, the new WIPO Director General, on the face of it, look impressive. “But if one were to examine these in depth and consider its implications, it may not be so for the developing countries. He wants to enhance the “quality and responsiveness of its services” to IP owners; enhance skill base of the WIPO’s patent offices and focus on technical mission for the benefit of IP owners and engage in policy issues involving IP such as harmonization of patent laws.” “These
are indeed the agenda of trilaterals (particularly One concern is that the Revised P&B does not clearly reflect how resources will be allocated for the delivery of the five Development Agenda recommendations that were adopted in the second session of the Committee of Development and IP (CDIP). In addition, while the programs in the Revised P&B make an effort to link to the various DA recommendations, often the section on expected results, performance indicators and targets makes no mention of how the implementation of the DA will be achieved and evaluated. The Revised P&B proposes approaching implementation of DA recommendations on a “project basis” which some delegates and analysts speculate will undermine the intent and purpose of the “Development agenda” initiative. Further, Annex V of the Revised P&B suggests significant resources being allocated to development activities in 20 programs, although the narratives of the programs indicate a weak link and sometimes no link to development activities. “Program and Budget” is a critical document as it sets out WIPO’s strategic goals, objectives and budget over a 2-year period (biennium). The changes introduced in the Revised P&B goes far beyond what had been agreed by member states when approving the transitional P&B at the WIPO General Assembly in March. The Revised P&B was supposed to only reflect adjustments required to take into account adoption of decisions on the agreed proposals relating to WIPO Development Agenda, amendment of fees under the Patent Cooperation Treaty and the report on the WIPO Desk-to-Desk assessment. The approved P&B was agreed to only after months of discussion and negotiation. Some developing countries had already raised concerns at various informal consultations and briefings held by Mr. Gurry at the end of October, prior to the official release of the Revised P&B. Several diplomats complain that many of the concerns raised are not incorporated in the Revised P&B. Diplomatic sources say that Mr. Gurry, has been busy meeting many Ambassadors in an attempt to get their agreement to his Revised P&B. An Asian delegate termed it as “building political momentum and clout” for the adoption of the budget. The Revised P&B redefines and reprioritizes WIPO’s Strategic Goals. It also expands the goals by adding several additional Strategic goals and establishes 3 new areas of program activity and introduces other significant substantive and budgetary changes to the programs under each Strategic Goal. The rationale for these changes according to the Revised P&B is so as not to lose time in “taking forward the process of organisation change”. But several developing countries are alarmed by the changes presented in the Revised P&B. An African delegate following this issue closely said it was unacceptable that Gurry had given members less than a month to consider such significant changes. He felt that Gurry could have introduced these changes next year, when the program and budget would be prepared for 2010/2011, giving members more time to discuss and analyse his proposals for what Gurry calls “strategic realignment” of WIPO. One particular area of dissatisfaction among developing countries is the expanded, redefined, re-prioritized Strategic goals. These goals set out how WIPO sees itself achieving its mission and will form the core of a Medium Term Strategic Plan for 2010-2015, which will be developed in parallel with the 2010/11 program and budget. The Revised P&B lists 9 Strategic Goals: Balanced Evolution of International Normative Framework for IP (Goal 1); provision of Premier Global IP Services (Goal 2); Facilitating the Use of IP for Sustainable Development (Goal 3); Coordination and Development of Global IP Infrastructure (Goal 4); World Reference Source of IP Information and Analysis (Goal 5); International Cooperation of Building Respect for IP (Goal 6); Addressing IP in Relation to Global Policy Issues (Goal 7); Responsive Communication Interface between WIPO, its Member States and All stakeholders (Goal 8) and Efficient Administrative and Financial Support Structure to Enable WIPO to Deliver its Programs (Goal 9). Goals 4, 5, 6, 7, 8 are the newly added goals. The 9 goals subsume the previous 5 goals in the approved P&B i.e. Promoting a Balanced IP system and Realizing its Development Potential (Goal 1); Strengthening of IP infrastructure, institutions and Human resources (Goal 2); Progressive Development of International IP Law (Goal 3); delivery of quality service in Global IP protection (goal 4) and Greater efficiency of management and administrative support processes (Goal 5). It is noteworthy that Gurry has re-prioritised “norm-setting” (which was Goal 3 in the transitional approved P&B) as the first goal of the organization, with WIPO as the provider of “premier global IP services” as the second goal. A positive element in the elaboration on goal 1 related to “norm-setting” is that it states “All programs and activities conducted under this Goal will be guided by the recommendations adopted in Cluster B of the Development Agenda”. Cluster B of the Development Agenda pertains “Norm-setting, flexibilities, public policy and public domain”. The revised P&B has also introduced a specific goal on enforcement of IPRs, which is a major priority of developed countries. This is couched as “International Cooperation on Building Respect for IP”, an indication that WIPO will be aggressively following up with the G8 agenda on IP enforcement. This issue was merely a program called “enforcement of IPR” under Goal 2 of the transitional approved P&B. The elaboration of the goal “Facilitating the use of IP for sustainable development” seems to indicate that thinking about WIPO’s mission has essentially not changed. It states that as a member of the UN family, “WIPO is committed to ensuring that all countries are able to benefit from the use of intellectual property for economic, cultural and social development” and it speaks of “using IP to contribute to the realization of the Millennium Development Goals”. It makes assumptions about the value of IP and fails to appreciate the often-heard arguments of the proponents of “Development Agenda” that while IP protection may in particular circumstances promote creativity and innovation it is neither the only way nor necessarily the most appropriate means for doing so, especially for developing countries. Further it does not appreciate that WIPO should consider alternative non-intellectual property-type systems for fostering creativity, innovation and the transfer of technology, while recognizing the benefits and costs of each system including the economic and social costs that IP protection may impose on developing and least developed countries, as well as on consumers of knowledge and technology in both the North and the South. The elaboration also misrepresents the agreement between UN and WIPO as to WIPO’s responsibility as a specialized agency as being focused on IP, when in actual fact, the mandate is broader ie. “for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development, subject to the competence and responsibilities of the United Nations and its organs….”. The choice of the term “sustainable development” in the new goal is also surprising, leading an expert to say that it is also sometimes used to set limits or conditions on the developing world. While the Revised P&B claims to have a “strong focus on development, including the mainstreaming of the development dimension throughout the substantive programs”, analysis reveals that it merely pays “lip-service” to incorporating the development dimension in its programs. Although the Revised P&B adds that “the successful implementation of the Development Agenda is a top priority for the new Administration”, it fails to elaborate on how financial and human resources will be made available to implement the 5 DA recommendations agreed in the Committee on Development and IP (WO/GA/36/A Rev. Annex II). The Revised P&B only presents a matrix that indicates under which programs the 5 recommendations will be implemented, adding that the issue of how resources are to be allocated will be made available to Member states prior to the PBC. In addition, “in order to ensure that sufficient resources are made available to achieve the results expected” in relation to DA, the Secretariat proposes in the Revised P&B adopting a “project-based methodology to the implementation of the adopted Development Agenda recommendations”. Many delegations are worried about the implications of such an approach. Once a project is completed, it would be hailed as the successful implementation of DA. This undermines the broader objective of the DA, that WIPO should re-orient its activities in the context of the broader development-oriented mandate of the UN, moving away from the current culture of “IP promotion” that prevails within the organization. Such a reform would need a vision of implementation that goes beyond a “project” approach. Another approach for the successful implementation of the Development Agenda according to the Revised P&B is “mainstreaming development-related activities into the substantive programs of the Organization”, a call often made by developing countries. In Annex V of the Revised P&B, details of resources allocated to development activities are presented. The Annex implies that resources for development activities have been allocated in 20 programs of WIPO, totaling 116.5 million Swiss francs. However a closer analysis of the Annex V and the programs’ narratives reveals a different picture. For example, in Annex V, 2.9 million swiss francs is set aside for “Building respect for IP” as a “Development Activity”. The narrative on this program is largely focused IP enforcement matters, with performance targets that include formulation of IP enforcement strategies and new or updated legislative framework for effective IP enforcement, more efficient enforcement actions in member states with improved right holder participation and strengthened strategic partnerships (with the World Customs Organization (WCO), Interpol, the World Health Organisation, OECD and the WTO). Nowhere does it state that its work will be within the confines of the TRIPS Agreement. At a time when developing countries are resisting the expansion of IP enforcement measures (particularly those that go beyond the TRIPS), in the WCO, WHO, WTO, it is incredible how the WIPO Secretariat presents resources for “Building respect for IP” as resources allocated for “development activity”. Annex V also presents the new program on “Economic Studies, Statistics and Analysis”, allocated 1.58 million swiss francs, as a “Development Activity”. The programme will include collection of statistical indicators for the WIPO Database and for its reports. It is difficult to justify classifying collecting statistics as a “development activity”. The South Centre’s analysis says it is not clear how most of the figures mentioned in Annex V were arrived at and that the expected results and performance indicators of the 20 programs are weak with respect to the claimed development activities. In some cases a program (as seen in the case of “Building respect for IP”), has no link to development. The Centre estimated that the budget share for development activities is decreased by about 15.5% in the Revised P&B in comparison to the approved P&B (without accounting for resources allocated in the approved P&B to other programs bearing budget costs for participation of developing country and economies in transition to Committee meetings). The Revised P&B makes significant changes to the programs. They include (1) eliminating the programme on “Use of IP for Development”, (2) establishing 3 new programs (Development Agenda coordination; economic studies and statistics and IP and Global Challenges); (3) regrouping copyright-related programs under a single expanded Copyright and Related Rights program; (4) expanding patent law program to cover patents, innovation promotion and technology transfer and (5) significantly reducing resources for the WIPO academy. One major criticism is that the elaboration of the programs focuses mainly on promoting intellectual property norms and related capacity building and infrastructure, with little on addressing “development concerns”. For example, in relation to the program on “Patents, Innovation Promotion and Technology Transfer”, the objective is “Progressive development of international patent law and practice”, although it adds that “balances the interests of Member states, users and society as a whole”. The expected results, performance indicators and targets revolve around developing the international patent system including by increasing membership to patent related WIPO administered treaties, greater awareness of the patent system and its role in economic development, reduction of redundant functionalities in the patent system and enhancing capacity of member states for national patent strategies and to acquire and manage patent assets. However it does not show clearly in the expected performance indicators or targets how it intends to ensure a patent system that is balanced. It also uncritically accepts that the increase in worldwide patent applications shows the success of the patent system and implies benefits of the patent system in delivering transfer of technology and innovation for developing countries, a notion challenged by many experts. The South Centre analysis found that while mention is made to specific Development Agenda recommendations, the expected result, performance indicators and target of many of the programs do not indicate measures that will be taken to implement the recommendations nor is a mechanism provided in the programs to evaluate whether a program at the end of the biennium has actually been implemented according to the DA recommendation.
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