TWN Info Service on Intellectual Property Issues (Nov11/05)
14 November 2011
Third World Network

Dear Friends,

Please find below, an article highlighting key points contained in a recent External Review of WIPO's Technical Assistance activities.

The full report of the External Review is available at http://www.wipo.int/meetings/en/details.jsp?meeting_id=22206

It is anticipated that this report will be discussed at the session of the Committee on Development and IP that will meet on Monday, 14th November 2011. Thus we hope you find the summary below useful.

Warm Regards
Sangeeta Shashikant
Third World Network

WIPO: Technical assistance criticized for shortcomings
An updated version of SUNS #7259 Monday 14 November 2011

Geneva, 10 Nov (Sangeeta Shashikant) – A review undertaken by two external independent experts found significant critical shortcomings and deficiencies in the orientation, management and coordination of the technical assistance activities of the World Intellectual Property Organisation (WIPO).

In particular, the experts found that WIPO’s staff and the activities lacked a development orientation, including a clear understanding of the overall purposes of WIPO’s development cooperation activities. The experts also highlighted the lack of detailed information, transparency and appropriate accountability (monitoring, evaluation and oversight) mechanisms over those technical assistance activities.

The External Review was mandated by Member states at the 4th session of the Committee on Development and Intellectual Property (CDIP) that met in November 2009, as a follow up to Recommendation 41 of the Development Agenda that speaks of conducting a review of current WIPO technical assistance activities in the area of cooperation and development.

It is anticipated that this Review prepared by experts Dr. Carolyn Deere Birbeck, (senior researcher, Global Economic Governance Programme, University College, Oxford UK) and Dr. Santiago Roca, (Professor of Economics, ESAN University, Graduate School of Business, Peru) will be discussed at the CDIP meeting that begins on 14 November.

WIPO’s technical assistance has been a central component of the organisation’s deliberations particularly in the context of the WIPO Development Agenda (DA) launched in 2004. Numerous DA Recommendations highlight the need for WIPO’s technical assistance to be development oriented, responsive to the priorities and needs of developing countries, accountable and transparent. However with little information and transparency available, most of the technical assistance activities have been shrouded in obscurity.

Thus the Review for the first time provides an in-depth analysis of WIPO’s technical assistance activities and attempts based on the information available, shedding some light on the effectiveness, impact, efficiency and relevance of WIPO’s technical assistance activities. The period covered by the Review is 2008-2010.

The Review presents its analysis under the themes of orientation, impact, management, internal and external coordination. Key observations made on these themes are noted below.

[The External Review defines technical assistance activities as all activities related to: the development of national IP strategies, policies and plans in developing countries (including needs assessments); the development of global, regional and national legislative, regulatory and policy frameworks that promote a balance IP system (including related research and support for the engagement of developing countries in global decision-making and dialogue); building of modern state-of-the art national IP administration infrastructure; support systems for users of the intellectual property system in developing countries; promotion of innovation and creativity and access to knowledge and technologies in developing countries and training and human capacity building in developing countries.]

ORIENTATION

On WIPO’s orientation, the Review noted that although its senior management had increased its focus on integrating DA Recommendations into the organization’s technical assistance activities, significant challenges remain.

At the institutional level, the Review found that WIPO did not have a clear understanding of the overall purposes of WIPO’s development cooperation activities, or of the phrase “development-oriented” assistance.
On the basis of its terms of reference, the Review noted that WIPO’s assistance is meant to ensure that developing countries are able to benefit from the use of IP for economic, cultural and social development as well as to contribute towards the reduction of the knowledge gap and the greater participation of the developing countries in deriving benefits from the knowledge economy.

Against this understanding, the Review found that only a small proportion of the 2010/11 Program and Budget and less than 15% of the 2012/13 Program and Budget are related to these objectives.

The Review also observed that the culture of collaboration, public engagement and openness to different perspectives on the IP system necessary for improved development-orientation is not yet institutionalized within WIPO. In fact, staff interviewed by the Experts continued to view WIPO as the “guardian of the international IP system”, and interpret the DA narrowly.

As to the focus of the technical assistance, the Review found that the range and intensity of activities in the area of industrial property was greater than for copyright and related rights, with a strong orientation toward improvements in IP administration, public awareness of the IP system, training administrators of the IP system, and the adoption of legislation across the full spectrum of IP issues, as well as promoting understanding of and accession to WIPO treaties.

Further the Experts’ analysis of the 2010/11 Program and Budget revealed that WIPO’s technical assistance activities do not properly reflect issues that are of priority to developing countries. The Review notes that the activities are more focused on assimilating developing countries into the IP system by attempting to derive benefits rather than to assist to lower the costs developing countries and their stakeholders face in using the IP system.

Accordingly the Experts observed that there were relatively few activities that clearly contributed to (a) the use of TRIPs flexibilities; (b) promoting access to medicines and education; (c) enlarging the public domain; (d) ensuring efforts to address counterfeiting and piracy are aligned with national needs and conditions; (e) the alignment of IP laws with efforts to protect natural resources, cultural expressions or TK and genetic resources from unfair use; and/or (f) the promotion of competition in the area of IP.

On a similar note, it was found that few technical assistance activities contribute to the goal of reducing the knowledge gap such as to: (a) attract, absorb, learn from and produce technologies and/or promote affordable access to knowledge that could contribute to local innovation processes; (b) promote the coherence of IP policies and other areas of national public policy; (c) make practical use of various exemptions or sui generis legal/policy options that would improve access to foreign technologies and/or manage the degree of protection they receive; (d) support developing countries to protect their knowledge, creative products or technologies in international markets and to enforce their rights in other jurisdictions; and (e) establish and use mechanisms that could improve balance in national IP systems, such as those related to pre- and post-opposition to patents.

One cause identified by the Review as contributing to the weaknesses in the development relevance and orientation of WIPO’s activities was the lack of systematic process of needs assessment, priority-setting or yearly or strategic multi-year planning of WIPO’s activities, further noting that the activities were undertaken on an ad-hoc, request-driven basis (usually from IP offices) or were driven by the work plans of WIPOดs Programs and those associated with WIPO Funds In Trusts.

Confusion among Member States and the Secretariat over the term ‘demand-driven’ was also identified by the Review. It noted that “Development-oriented demand-driven assistance is that which is aligned with national development needs” and to achieve this there needs to be dialogue between national beneficiaries and the WIPO Secretariat about national development strategies, priorities and needs and about WIPO’s obligations to advance the DA.

However, the Review found that WIPO staff interpret the term ‘demand-driven’ as to be obliged to respond to Member State requests, even where links to national needs or the WIPO DA are unclear, or where activities are not likely to be cost-efficient or yield impact.

It further found inadequate discussion between WIPO staff and Member States on the risks associated with activities or the local conditions/requirements that would facilitate or constrain the success of activities, even where WIPO staff are well aware of the constraints. It added that many activities resulted from offers or suggestions originated from the Secretariat, which was accepted by the beneficiary Member States, rather than the other way round.

The Review also makes a number of pertinent observations with regard to some key activities of WIPO.

On WIPO’s assistance to countries for the formulation of national IP strategies, the Review found that the Secretariat does not yet use a satisfactory methodology for assisting developing countries to assess their development needs, IP capabilities and appropriate strategies and that an ad hoc approach to support for IP strategies exists.

With regard to technical assistance for legislative, regulatory and policy frameworks in developing countries, the Experts’ efforts to evaluate the development orientation of WIPO’s legislative advice was thwarted by the confidentiality of WIPO’s country-specific legislative advice. However, based on available evidence, the Experts found an orientation towards promoting accession to WIPO administered international treaties and limited practical and proactive advice on how to use TRIPS flexibilities.
The Experts also observed that WIPO no longer used model laws as a basis for its legislative assistance to countries and that legislative support was provided through specific legal advice, as well as seminars and WIPO supported IP plans and strategies.

[The use of model laws had been criticised for a while as imposing a one-size-fits all model and for not maximising flexibilities in TRIPS and other IP treaties.]

The Review further found that while some countries did seek and receive advice on the implementation of IP provisions in bilateral FTAs, WIPO did not provide assistance in examining the possible development impacts of these or any other international IP negotiations or implementation options.
On activities to enhance support systems for IP users, the Review found that a development perspective in the conceptualization of such activities was often missing as a result of inadequate attention to needs assessment of the needs of a diversity of potential users and stakeholders. Consequently the focus remains on promoting the use and usefulness of the system to existing and potential IP right-holders in developing countries.

With regard to WIPO activities on modernization of IP office infrastructure in developing countries, the Review observed that low priority was given to supporting collaboration, information-sharing and coordination among developing countries.

On WIPO’s engagement with stakeholders, the Review noted that WIPO’s global events predominantly featured speakers from IP offices, IP right-holders, the IP legal community, and other industry-related stakeholders. The Review found examples of technical assistance activities sub-contracted to consultants and other providers also known to be working for developed country industry clients, while no similar arrangements with developing country research institutes or civil society organizations for the provision of WIPO assistance were found. However, due to the absence of greater disclosure of the substantive content of WIPO activities, the Experts could neither confirm nor rule out problems associated with disproportionate influence of particular companies, international industry associations, or rights holder organizations on the orientation of assistance.

On the issue of beneficiaries, the Review reveals that while the diversity of recipients at the national level was steadily growing, the dominant beneficiaries and participants in activities at the national level remained national IP offices and organizations representing the interests of IP-right holders and legal community.

IMPACT

Results of the Experts’ survey revealed that most national IP offices consider WIPO’s support to be very important for their operations.

However, due to the absence of systematic monitoring, reporting and evaluation of the impact of WIPO’s development cooperation activities against their expected results, the Experts stated that their ability to offer an assessment of the impact of WIPO activities has been hampered.

They also noted that the lack of sufficiently detailed information on WIPO’s activities by objective, content, expected results, country, region, topic, or on related expenditures, for conducting impact assessment, effective management, monitoring of progress or critical evaluation by the Organization, its Member States or stakeholders.

In addition the Review also observed weakness in the way WIPO’s Program and Budget document is structured and presented. The experts noted that they were not able to clearly establish the relative distribution of resources across the development cooperation activities undertaken by WIPO Programs, Sectors, and divisions, adding that it was not possible to establish where the majority of the development cooperation budget goes and thus to assess whether this distribution adequately reflects the degree of priority particular issues/activities deserve from the point of view of development. A related point noted by the Review was that none of the extra-budgetary resources associated with funds in trust (FIT) were reported in an integrated way alongside or as part of the WIPO Program and Budget, nor was there any systematic reporting to Member states about how FIT-financed activities contribute to the Organizations’s objectives or expected results in the area of development cooperation.

The Experts also found a lack of clarity within the organization about what ‘development impact’ means at different levels and for the diverse range of activities in which WIPO is involved.

Accordingly, while recognizing the considerable empirical, methodological and conceptual challenges to evaluating the relationship between IP systems and development, and the role of technical assistance, the Experts found that WIPO lacks the relevant diversity of methodologies and tools to help countries measure the impact of changes in IP policies and laws on development and other strategic objectives, or to properly assess how its assistance may influence the achievement of such impacts.

It also noted that the focus of any internal assessments that do take place is generally on the short-term results (e.g. over two years), not long-term or cumulative impact.

The Experts through their country visits also found that a number of seminars, professional training and activities, conferences were not properly adapted to the specific needs of recipients, and there was a lack of follow up to ensure usefulness and exploitation of any benefits.

MANAGEMENT

Generally the Review concluded that the management and oversight of WIPO technical assistance activities by the Secretariat and Member States was poor with non-existent effective monitoring and evaluation mechanisms.

It further observed that the WIPO Secretariat was not able to provide meaningful summaries or evaluations of its technical assistance activities, budgets or expenditure by country, region or expected results for the period under Review. In fact for the 2008/09 and 2010/11 Program and Budget, WIPO lacked an adequate definition of what counted as a development cooperation activity for the purposes of the Program and Budget process.

The Review observed that effective monitoring and evaluation was impossible in the absence of an effective information management system for maintaining updated, substantive information about activities completed, underway and planned, the associated budgets and expenditures (personnel and non-personnel) or the content, impacts and evaluation adding that this undermines efforts to improve the development orientation, impact and cost-efficiency of WIPO’s technical assistance activities.

Transparency and accountability were thus weak, the Review noted, highlighting also the absence of an appropriate forum/opportunities for Member States to perform an oversight function of WIPO’s technical assistance activities on an ongoing basis.

The Review also found inadequate use by the WIPO Secretariat of project management tools for planning, design and implementation of activities, adding that beneficiaries of assistance were not necessarily experienced with the use of project management and monitoring tools.

The Experts further found evidence of problems with the timely implementation and completion of WIPO technical assistance linked with inadequate assessment and discussion between the Secretariat and beneficiary Member States of the risks associated with proposed development cooperation activities, country preparedness, institutional and resource constraints in beneficiary countries, and absorptive capacity.

The Report also found evidence of over-reliance on external consultants with a lack of ability to properly supervise the quality or orientation of consultants’ work; uncertainty by Member States as to the appropriate contact people within the Secretariat for technical assistance activities; weak communication beetween IP officers and other parts of governmental and national stakeholders. Support given by WIPO to a national stakeholder is often not communicated to other sections of the governments/stakeholders.

In addition, the Review highligted inadequate attention to the broader public transparency of the organization’s development activities, important for the purposes of external evaluation, learning, credibility and accountability. According to the Review WIPO’s website was not, for instance, properly harnessed, maintained or updated to serve either as an effective instrument for communication about WIPOs technical assistance activities, as a platform for collaboration or critical evaluation, or as a source of technical assistance and resources for potential beneficiaries.

COST EFFICIENCY

The Review identified inadequate use of project planning tools, weak attention to cost-considerations, duplication, institutional bottlenecks or procedures, and inadequate access to qualified staff or consultants for some activities as factors that unduly raise the cost of WIPO’s technical assistance.

It also noted that WIPO’s financial reporting methodology for the period 2008-2011 did not facilitate an analysis of the extent to which certain modes of delivery of developing country activities are used, the relative resources devoted to them, and their cost-effectiveness.

INTERNAL COORDINATION

The Review found that the Secretariat faces difficulties ensuring internal coordination of the diversity of development cooperation activities undertaken by different Sectors and Programs of the organization. The investigation revealed examples of duplication and failure to harness adequately the potential synergies between activities.

The Review noted that there was too little direct knowledge among staff about the activities of other programs and sectors in related areas or about concurrent activities within the same country. It also found inadequate connections between assistance delivered by Regional Bureaus, WIPO’s external offices and the substantive sectors.

The Review observed that while some efforts were underway in the context of the proposed 2012/13 Program and Budget to streamline planning to clarify the roles and responsibilities of the different WIPO’s sectors, the challenge remains of ensuring that coordination occurs in practice, both for the design and the implementation of WIPO’s Programs.

EXTERNAL COORDINATION

On external coordination, the Review concluded that there was inadequate strategic thinking on the part of Member States or the WIPO Secretariat on the diversity of external partnerships and collaborations needed to fulfill the DA mandate. It did not find evidence of systematic mapping by any WIPO Program of other relevant actors and potential collaborators, or competitors, in the field.

It also found evidence of duplication and overlap with other actors, particularly national or regional IP offices that have their own development assistance budgets and programs.

It noted that a primary focus of WIPO’s efforts was to forge partnerships on resource-mobilization, both to boost funds for WIPO’s activities and to help Member States directly access funding to meet their national needs, but added that this should not overshadow the need for WIPO to pursue partnerships with the purpose of supporting, learning from, or collaborating with the diversity of other donors and stakeholders active in providing development assistance to developing countries on IP-related needs, and on related areas of public policy, such as public health, innovation, science and technology.

The Experts further found that WIPO’s engagement with stakeholders on development cooperation activities varied according to the issue and type of activity and that overall, there was greater evidence of WIPO’s engagement with IP right-holders, their associations and private sector IP experts than with civil society actors (e.g., consumer rights, public health, library, development actors or public interest lawyers), research institutes and universities, particularly those from developing countries.

It noted that while WIPO engaged regularly as a participant and a co-sponsor of events with organizations such as the International Chamber of Commerce and various right-holders organizations, WIPO had relatively little collaboration with several international organizations (such as UNDP, the South Centre, UNCTAD) and civil society groups active in promoting development-oriented approaches to IP policy and practices (such as the International Centre for Trade and Sustainable Development, Third World Network and Knowledge Ecology International).

The Report observed that WIPO’s weak engagement with a range of international and national stakeholders and potential partners in the implementation of developing country activities means that countries do not benefit from a diversity of expertise, experience and views.