TWN Info Service on WTO and Trade Issues (July08/17)
21 July 2008
Third World Network

Please find below a news report on the last session of WIPO Committee on Development and Intellectual Property (CDIP) which met from 7th – 11th July. The CDIP is tasked by the WIPO General Assembly with carrying forward and implementing the 45 recommendations that were adopted to mainstream Development Agenda in WIPO.

It was first published in SUNS #6517 dated 15 July 2008 and is reproduced here with permission.

Best Regards
Sangeeta Shashikant
Third World Network
email: ssangeeta@myjaring.net

WIPO: Meeting adopts report on Development Agenda activities
Published in SUNS #6517 dated 15 July 2008

Geneva, 14 July (Riaz K. Tayob and K. M. Gopakumar*) -- The WIPO's Development Agenda process made some progress last week as the body charged with implementing the agenda discussed the activities to further implement some 15 of the 45 recommendations that have been adopted under this agenda.

The second session of the WIPO Committee on Development and Intellectual Property (CDIP), which is tasked by the WIPO General Assembly with carrying forward the work of the Development Agenda, discussed the implementation of activities linked to the recommendations, as well as the application of the Agenda's principles.

The meeting ended last Friday (11 July) adopting the Chair's Summary prepared by CDIP Chair, Ambassador Trevor Clarke of Barbados.

In addition the CDIP will send a report to the September General Assembly including the following: (1) A report on the activities for implementation on the Work Programme, in Annex I; (2) Recommendations on the activities for the work programme, in Annex II, for which the Secretariat is to provide additional information on human and financial resources for implementation; (3) It urges the General Assembly to make resources available to the Secretariat consistent with PBC processes; (4) It urges the General Assembly to encourage all member states, WIPO (and its bodies) to effectively implement the adopted recommendations; and (5) It states that CDIP needs to discuss at its third session (CDIP III) the mechanisms for its coordination with other WIPO bodies on implementation of the Development Agenda and also for monitoring, assessment and reporting on implementation and to report this to the General Assembly.

It was also made known that financial issues linked to the Development Agenda will only be discussed subsequent to the General Assembly. This is because, unusually, WIPO's Programme and Budget Committee (PBC) will only meet in December. Normally, the PBC meets before the Assembly and sends its report to the Assembly for approval.

The meeting had before it the first Initial Working Document (PWD) from the March CDIP and an update (known as the Initial Working Document or IWD) which showed the programmes and activities proposed for each recommendation, informal papers, and details on human and financial resource needs. The Secretariat also prepared three informal papers incorporating the considerations raised at the first session. The papers are on the mobilisation and utilisation of existing extra-budgetary resources, information on recommendation 10, and terms of reference on recommendation 8.

The 45 adopted recommendations on the Development Agenda are in 6 clusters: Cluster A - Technical Assistance and Capacity Building; Cluster B - norm setting, flexibilities, public policy and public domain; Cluster C - Technology transfer, information and communication technology and access to knowledge; Cluster D - Assessments, Evaluation and Impact Studies; Cluster E - Institutional matters including mandate and governance; and Cluster F - Other Issues. It had been agreed that 19 of the recommendations are to be implemented immediately through current WIPO activities.

At the meeting, there were mainly two areas in which the developing countries disagreed with developed countries. The first was the developed countries' attempts to limit the scope of application of the principles of the Development Agenda, by their reluctance to have other committees of WIPO being obliged to pay attention to them. The second was developed countries' vigorous attempt to have further discussion on the approval process of what will be budgeted for the implementation of activities of the Development Agenda.

Annex I in the Chair's Summary includes recommendations on Technical Assistance and Capacity Building (i. e. recommendations 1, 3, 4, 6, 7 and 11). Annex II includes cluster A recommendations 2, 5, 8, 9 and 10. It was agreed the Secretariat would update information on recommendations 20, 22 and 23 on resource requirements. It also discussed recommendation 12, which had no finance and human resources implications, and will also update proposed activities. The Secretariat would make necessary modifications and furnish a progress report on the 19 recommendations which also do not have resource implications for the next CDIP.

This report covers recommendations that attracted discussions.

The meeting discussed the activities for Annex II recommendations for the first time. The next CDIP session will further discuss these, including details on human and financial resources. Of the total of 45 recommendations, a balance of 30 have not yet been considered at the CDIP, and are scheduled to be discussed in future CDIP sessions.

The meeting saw some disagreements amongst member states, with developing countries in the Group of Friends of Development (FOD) and the Africa Group sometimes pitted against the industrialised countries and even against what seemed on some issues like a combative Secretariat.

Some of the disagreements were on the list of proposed activities. But there was also disagreement on mainly two types of issues. The first issue was the developed countries' attempts to limit the scope of application of the principles of the Development Agenda to the CDIP, with the apparent aim that other WIPO bodies would not have to come under some mechanism to ensure they apply the recommendations.

This was fought by many developing countries, which advocated mainstreaming development and the Agenda in the various WIPO bodies. In the final summary, the CDIP "urges" the General Assembly to "encourage" all WIPO bodies to effectively implement the recommendations. More discussions are to take place at CDIP III.

Secondly, developed countries wanted to discuss further steps in the process of approval of what can be spent on implementation. They sought to ensure that the PBC consider budgetary allocations and that there should be no deviation from normal WIPO budgetary processes. This would imply that since the PBC meets after the General Assembly, only the 2009 Assembly can consider the additional budget requests for Development Agenda implementation activities. The EC, France and Norway have been rigorous in requesting a breakdown of finances of activities that clearly separates current budgets from requests for new funds.

On substantive issues, there were also differences between some developing countries and the WIPO Secretariat. The exchanges were especially on the Secretariat's insistence that IPRs are inherently pro-competitive and that "flexibilities" include disciplines that exceed the policy flexibility granted in TRIPs and other agreements (i. e. that the ability to adopt TRIPs-plus rules should also be considered as "flexibilities").

The first CDIP session (CDIP I) had been bogged down by similar differences. After CDIP I, the Secretariat's views were characterised by some developing country delegates as "ironic," lacking neutrality, and demonstrated "very limited capacity to understand the crux of the Development Agenda debate". At CDIP I, when the flexibilities matter arose, Brazil's said that CDIP should discuss the meaning of flexibilities. (SUNS #6432 - 11 March 2008).

At CDIP II last week, the Secretariat's Acting Director for the Division for Public Policy and Development, Office of Strategic Use of Intellectual Property for Development, Mr. Nuno Pires de Carvalho, nevertheless repeatedly asserted his view on the meaning of flexibilities (i. e. that flexibilities include TRIPs-plus provisions) and seemed to suggest that any member saying otherwise would effectively be reinterpreting the relevant recommendation.

[At the WIPO National Seminar On Industrial Property And On The Implementation Of Trips Obligations In The Pursuance Of National Public Policies And Goals in Damascus in May this year, Carvalho's presentation stated under the topic "Hurdles" to the Development Agenda that, "It was proposed by countries that do not use technology related-IP intensively, it was proposed by IP policy takers, not by IP policy makers." It adds that, "if the active engagement of developed countries in the CDIP is not obtained, sometime in the future, negotiations will be held in another multilateral forum." - SUNS]

The recommendations are a mix of principles, activities and issues. The principles contained in the recommendations are understood to be applicable to WIPO and all its bodies. Many developing countries, including the Friends of Development and the Africa Group sought to set up a means to obtain information and to assess how other WIPO bodies are applying the Agenda. While not openly opposing the implementation of the agenda, many developed countries sought to constrain these attempts by interpreting the CDIP mandate in a narrow sense or by limiting the mechanisms proposed.

The meeting started with opening remarks. WIPO Deputy Director General, Mr. Francis Gurry, who has been nominated for Director General, assured the meeting of the personal importance he attached to the Development Agenda. agenda. He said the proposed work under recommendation 8 deals with technical information disclosed through the patent system. Ways need to be found to give developing countries access to non-patented literature.

Brazil said the Development Agenda is not just a technical assistance agenda but one that hopes to change the culture of the organisation from one that focuses on rights holders to one that inserts itself into the overall goals of the UN system. WIPO needs to implement the other aspects of the IP social contract and strike an adequate balance of the private sector, governments and public interest including the sufficiency of the patent disclosure system.

Algeria for the Africa Group said all the recommendations were equally important and supported their implementation. Pakistan for the Asian Group said the agenda should not be compartmentalised and the implementation of the recommendations are not an end in of itself. The group believed that all 45 recommendations are equally important and should be implemented in totality.

India said that WIPO now recognised the development pillar of the UN, albeit belatedly. The agenda should be implemented and the requisite resources be provided based on the committees' recommendations. It said in the corpus of the
45 recommendations are not only proposals for implementation but guiding principles that should inform the entire WIPO system and this implies all its committees.

Brazil echoed India's sentiments about the implementation of the agenda. It said if we have concerns about the balance on development at WIPO, there should be a permanent way of communicating them so as to make them known and to factor them in, (implying in WIPO's other committees).

Thailand said it saw development as an overarching issue. On the future work plan, it saw merit in having a comprehensive menu of options regarding technical assistance available at WIPO. It noted that only a relatively small portion of the total budget was allocated to "Promoting a Balanced IP System" and "Strengthening IP Infrastructure" despite this being the greatest need in developing countries.

Sri Lanka stressed the need for balance. Despite consensus on transfer of technology there was still a significant digital and technological gap. All possible measures should be use to introduce corrective measures.

France for the European Community said that examination of the work programme is essential while taking into account the budgetary implications. The US said that its watch-words for the meeting was a focus on "achievable" and "practical results." Discussions should take a careful and deliberative approach.

The US also questioned whether the financial allocations in the working document would have to go to the programme and budget committee (PBC) for approval. When asked, the WIPO Financial Controller confirmed this.

Brazil then clarified, with the Controller, that this committee could in fact make recommendations to the PBC and the General Assembly. The Controller affirmed this and said the General Assembly can approve it on any conditions. For instance, this could include making its approval conditional upon PBC approval of the CDIP budget.

Countries like France, Germany and the United States highlighted that the decisions were not final or cast in stone. This irked some developing countries, one of which said that it is not very beneficial to review decisions that have been approved.

Discussions during the week took place on the 15 recommendations annexed to the Chair's Summary.

Recommendation 1 includes how WIPO is to mainstream Development Agenda and aims to transform WIPO technical assistance so that it is development oriented, demand driven and transparent. It proposes to "issue an office instruction to WIPO staff and consultants advising them to adhere to the general principles contained in this and other recommendations."

Regarding mainstreaming the principles in recommendation 1, the Initial Working Document (IWD) in Annex I, proposed to ensure adequate consideration of the Development Agenda in future documents and to include these principles in future guides and manuals. Also, it proposed to "issue an office instruction to WIPO staff and consultants advising them to adhere to the general principles contained in this and other recommendations" [This issue was contentious at the first session - see SUNS #6432 dated 11 March 2008.]

During the discussion the US sought and obtained the removal of the adjectives to the word "principle" as there had been no discussion differentiating "general principles", from, "core principles" in the Development Agenda. It also sought clarity on what an office instruction meant and whether it would apply to WIPO consultants.

The Secretariat said that an instruction in the UN system is one that the Director General would send it out so that it "completes the staff rules and regulations." It said that there is at the moment a document circulating in-house for comments from the legal office and different units. The IWD (in Annex II) details in a table proposed programs. On recommendation 2, the IWD includes a proposal for a donor conference. A paper on this will be prepared by the Secretariat "to apprise donors" about the Development Agenda. It will consider the establishment of monitoring mechanisms and the management of voluntary funds.

The informal paper on The Mobilisation and Utilisation of Extra-budgetary Resources' states that management of programs funded by voluntary contributions is decentralised and funds are managed as a series of Funds-in-Trust (FIT) agreements. Financial regulation 3.11 states that voluntary contributions may be accepted provided that the purpose of the contributions are consistent with WIPO's policies, aims and activities. It paper also notes that donors may request specific financial reporting arrangements.

The paper reports on current donors including Spain's work in Latin America for instance on harmonisation of instruments for IP application and management, and an Italian programme that includes counterfeiting and piracy. In addition it presents a format for the Donor Conference where developing countries identify priorities and donors theirs.

On recommendation 5, the IWD states that WIPO will initiate work on a database project to display general information on technical assistance, and on request of states, details of specific activities.

During the discussions Argentina noted that the FOD proposals on recommendation 5 had not been incorporated. The US challenged the FOD proposal, asserting that only general information should be made available. It was clarified that members can provide consent regarding disclosure of such information.

Recommendation 6, in the PWD, seeks a code of ethics for WIPO technical staff and consultants to ensure neutrality and accountability by avoiding potential conflict of interest. It also asks WIPO to prepare a roster of consultants for technical assistance and to be made available to Member States.

On recommendation 6, the Secretariat informed that a draft code of ethics for technical staff and consultants is under preparation. It added that the terms of reference for the ethics officer is also in the process of finalisation. The roster of consultants for technical assistance will be completed by next month.

Recommendation 7, in the PWD states, "Promote measures that will help countries deal with IP related anti competitive practices, by providing technical cooperation to developing countries, especially LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies."

Recommendation 7 proposes technical assistance in order to better understand the interface between intellectual property rights and competition policies. Proposed activities include legislative assistance and advice to prevent or resolving anticompetitive practices. A study was also commissioned on the interface between intellectual property and competition policy, to be ready in end-2008.

The US said that the interface between IPR and competition policy is extraordinarily complex. The US said that IP policy does not exist in a vacuum but in a complex web of trade and trade related issues including transfer of technology, and should not loose on economic growth and FDI.

The US focussed on an activity that included "monitoring anti-competitive agreements in licenses." It questioned whether active monitoring of private sector agreements would be appropriate role for an international organisation to take and asked the Secretariat for clarity.

For the Secretariat, Nuno Pires de Carvalho assured the US that legal advice from WIPO would not interfere with private rights and contracts. Responding to the US remarks on the interface being extraordinary complex, Brazil stated, even though it is a complex issue, the complexities should not inhibit activities.

China stressed this recommendation's importance and said there was a need for developing countries to better understand the interface between intellectual property and competition policy.

Brazil said it was an important subject especially in the light of developing countries' process of moving to an advanced market economy. South Africa stated it is most relevant for developing countries because anti-competitive practices affect small economies, leading to high prices. Pakistan requested a seminar on intellectual property and competition policy in Geneva to facilitate the participation of developing country diplomats based in Geneva.

Benin, Columbia, Cuba, Costa Rica , Sudan, Chile, Nepal Thailand, Trinidad and Tobago, Nigeria and Nepal endorsed the importance of this recommendation. The Chair then noted that there is wide support for WIPO to assist developing countries in this area.

Recommendation 11 states, "To assist Member States to strengthen national capacity for protection of domestic creations, innovations and inventions and to support development of national scientific and technological infrastructure, where appropriate, in accordance with WIPO's mandate." The meeting adopted the proposed activities after listening to the Secretariat on the details of various WIPO capacity building programs for the protection of domestic creations, innovations and inventions.

Recommendation 12 states: "to further mainstream development considerations into WIPO's substantive and technical assistance activities and debates, in accordance with its mandate." The Secretariat reported that a whole range of activities were touched by this recommendation. It includes principles that "underpin WIPO reorientation activities with a view to mainstreaming development.

"Development activities" should be development orientated, demand driven and executed in transparent manner. It should and take into account the circumstances and priorities defined by countries and that, "no one size fits all." It "covers the gamut of assistance that WIPO provides including legal assistance."

Carvalho said that on flexibilities, the work activity idea is to raise awareness. The purpose is not to persuade countries to use or not use flexibilities, he said, adding that WIPO had provided advice on different flexibilities under the TRIPs agreement. It identified flexibilities as regards the acquisition of rights. WIPO has developed some modalities as to the dimensions of the rights. This included, Carvalho said, "limitations and exceptions on one hand and TRIPs-plus modalities on the other"; and "flexibilities on the use of rights."

On the use of flexibilities Carvalho said that discussions have taken place personally with delegations like in Singapore, Tunis and Muscat. Finally, he proposed the idea of studies. It is not commissioning a study for publication but to seek technical advice for the Secretariat to receive creative ideas on new flexibilities.

Tunisia enquired from the Secretariat details on how the Development Agenda will be mainstreamed in both formal and informal WIPO meetings.

Brazil said the Agenda calls for an expansion of these technical assistance activities into non-traditional or new areas. The central message is that developing countries should be enabled to fully benefit from the IP system.

The effective way is to enhance their capacity to protect their creations. It supported the activities particularly on legislative assistance. CDIP should also give due consideration of having a larger event like a Global Forum on IP and Development.

India supported Brazil, and spoke on three areas. First, the recommendation should enable members to understand the existing regime that complies to the applicable system a country is bound to respect. This includes, what are the flexibilities, obligations and spaces available to utilise to achieve these aspirations. In this sense, outreach activities become relevant. Second, to enable countries to build up their capacities. Third, how does WIPO as a body and system enable the above to be done, for instance, the role of future instruments to be negotiated.

The US reiterated its cautionary advice that all activities are to be implemented based on sound, recent and expert opinions, balanced in the sense they take account of all points of view and are public policy neutral.

The US submitted that technical assistance on legislation should take into account the entire package of rights and obligations, and flexibilities should take this into consideration. This is a balanced approach, the US said. More importantly it said this was common sense and without the context of underlying rights and obligations, such an approach would have all the rhythm of one hand clapping. It requested a change, and that balance be brought to this provision.

Argentina, for the FOD, said that legislative assistance is part of technical assistance and that the activity should remain. It stressed that the required balance was in relation to development.

(* This is the first of a two-part article on the WIPO meeting on the Development Agenda last week. The second part will appear in the next issue of SUNS.) +