[A2k] [Fwd: [ipr] on the WIPO Development Agenda]
Michelle Childs
michelle.childs@cptech.org
Wed Apr 6 12:31:14 2005
---------------------------- Original Message ----------------------------
Subject: [ipr] on the WIPO Development Agenda
From: "Vera Franz" <vfranz@osieurope.org>
Date: Wed, April 6, 2005 4:58 am
To: "ipr&publicdomain" <ipr@mailhost.soros.org>
--------------------------------------------------------------------------
Following the establishment of a Development Agenda at the World
Intellectual Property Organization (WIPO) last September by a number of
developing countries, an Inter-sessional Intergovernmental Meeting (IIM)
is to be held in Geneva from 11-13 April, 2005. The purpose of this
meeting is to discuss a number of concrete proposals that have been put
forward by WIPO member states.
See below for two interesting articles relevant in that context:
* The New Battle Ground: India may lose its traditional allies as it
shifts its stand on the development goals of a global patent regime, by
Latha Jishu (Business World, April 2005) * WIPO and the Development
Agenda: In Search of the Development Dimension in Intellectual Property,
by Sisule Musungu (South Centre)
***
The new battle ground
India may lose its traditional allies as it shifts its stand on the
development goals of a global patent regime.
Latha Jishnu
Call it forum shopping. When a strategy doesn't work in one place, move on
to another - and to the next. That's how the patent battle is being waged
as the industrialised nations doggedly seek tighter
protection for their intellectual property (IP) in the developing
world.
Following the setback at the World Trade Organization (WTO), the
frontline of this confrontation has now shifted to the World
Intellectual Property Organization (WIPO) in a loop that has targeted
individual nations and regional trade blocs. The momentum picked up after
the WTO adopted the Doha Declaration on Trade Related Aspects of
Intellectual Property Rights (TRIPs) in 2001, giving primacy to public
health concerns in IP-related issues, and subsequently ratified it in
August 2003.
Since then, the developed world, notably the US and the European
Union, have been pulling out all stops to impose what are known as
TRIPs-plus conditions on the developing countries, either through
pressures exerted on individual countries to amend their laws or
through bilateral and regional free trade agreements. TRIPS-plus
conditions provide stronger IP protection than what the WTO seeks from its
members, and usually have far-reaching implications for public health and
agriculture in poor countries.
If the EU and the European Free Trade Association (EFTA) have been
arm-twisting African and Caribbean nations into providing such
protection, the US has been way ahead with its TRIPs-plus approach, which
has locked a swathe of nations from Singapore to Morocco and Chile in a
vice-like grip.
The bigger target, however, remains WIPO, one of 16 specialised
agencies of the UN that administers 23 international treaties dealing with
different aspects of IP protection. The Geneva-based organisation counts
182 nations as its members, and it is here that a bitter
contest is taking place between developed nations and the trilateral bloc
of the US, the EU and Japan. India, strangely, is now finding itself smack
in the line of fire, alienated from its traditional
allies - and its known position on IP issues.
The fireworks began after a select consultative meeting was called
recently by WIPO director-general Kamal Idris to discuss the global patent
harmonisation process. The meeting, held on 15-16 February in Casablanca,
Morocco, was chaired by India's top scientist R.A.
Mashelkar, director-general of the Council of Scientific & Industrial
Research and secretary, department of science and technology. It is an
issue that has blown up in India's face.
Not only was it a meeting to which most developing nations had not been
invited, but the manner in which the consultations were conducted has
provoked a global storm. Over 800 organisations and eminent
persons have signed a petition criticising the meeting and calling for a
transparent process at WIPO. Barring Brazil, none of the Group of 14
nations led by Argentina, which are pushing a development agenda at WIPO
in 2004, was invited for the meeting. And Brazil, which is a
co-sponsor of this agenda, predictably opposed the resolution adopted at
Casablanca.
The select February meeting has set the road map for the WIPO general
assembly to move forward on patent harmonisation. The meeting
identified the six issues to be dealt with in an accelerated manner to
move towards codification of an international IP law: prior art, grace
period, novelty, inventive step, sufficiency of disclosure, and
genetic resources. To the lay person, these might seem innocuous; to the
IP community, this is volatile stuff. It is the core of the
developed nations' TRIPS-plus agenda.
Setting off a storm: Mashelkar's chairing of a WIPO meet has sparked protests
Casablanca represents a significant victory for industrialised
nations, led by the US, which have been pressing for speedier
harmonisation of patent laws and procedures at WIPO. Harmonisation is the
most controversial subject being debated currently in WIPO and has
resulted in battle lines being drawn on traditional North-South lines,
although there is discord enough among the developed countries, too.
The trilateral group, despite their differences - the EU recently
deferred a law on software patenting - has been threatening to walk out
from WIPO unless the developing countries fall in line on
harmonisation. The threat was that they would effectively take the Patent
Cooperation Treaty (PCT) out of WIPO to a rival system. The PCT regulates
the registration of global patents and is WIPO's main source of revenue.
Not many expect this to happen, at least not in the foreseeable
future. Some like Dilip Shah, secretary general of the Indian
Pharmaceutical Alliance, believe it is a bluff that should be called
because they "need us more than we need them". Shah, who has been
spearheading a campaign to protect the generics industry, says WIPO
provides a cost-effective, efficient system that is more useful for the
rich countries.
Casablanca has brought India back into the harsh glare of the global
spotlight. Since December, when it passed its patent ordinance, the
country has been the focus of health activists across the world.
Protests have been staged outside its missions in Washington, London and
Paris, while Delhi has been inundated by petitions from across the world,
calling for adequate protection to its generic drugs industry, which
provides more than half the anti-retroviral medicines used by AIDS
patients in 27 countries.
Left out: India stands to lose friends like Brazil's Lula da Silva and
South Africa's Thabo Mbeki. They represent the other two sides of the
trilateral IBSA trade bloc
Even the World Health Organization had intervened. Director Jim Yong Kim,
who heads the WHO's department of HIV/AIDS, had written to Indian health
minister A. Ramadoss, urging that India's patent laws should make full use
of the flexibilities available under TRIPs. And the
conservative newspaper New York Times had made a pitch for an Indian
patent law that took into consideration the health needs of poor
patients. Some of the clamour had died down after a much-reworked
Patents Bill was passed by Parliament in February, but the WIPO issue has
once again stirred up matters.
Mashelkar, who spoke to BW shortly after coming back from the WIPO
meeting, says it "helped save the multilateral process". But for
India, there is trouble in store. Officials at India's permanent
mission to the UN say that they are finding it difficult to reconcile the
resolution moved by the Casablanca meeting with India's
longstanding commitment to a development agenda.
The mission has sent a letter to key officials in the ministries of
commerce and industry, external affairs, health and HRD, warning that
India can expect to remain under the microscope on its patents
policies. It says: "There is concern that Dr Mashelkar's chairing of the
Casablanca meeting and playing a key role in shaping its outcome could be
a signal that India is not just distancing itself from other developing
countries on an important North-South issue, but more
ominously that India might be considering joining "the other side'."
Calling their bluff: Indian Pharma Alliance's Dilip Shah says WIPO must
not be hijacked by rich nations
The mission contends that the selective manner in which invitations to the
Casablanca meeting were issued - "almost entirely to
individuals/countries known to be supportive of upward harmonisation" -
and the expected outcome has "become a subject of intense concern to
officials working in the health sector, including WHO, UNAIDS, the Global
Fund and civil society at large".
Diplomatic observers underline a larger implication. For one, there is the
question of the G20 alliance in the WTO. This group of developing nations,
led by Brazil, India and Argentina, has been extremely
successful in wresting concessions on a number issues, especially
agriculture, from the rich bloc. Will this still hold after India's sharp
deviation from the development agenda at WIPO?
Two, there is the IBSA (India, Brazil, South Africa) initiative, a new
trade axis aimed at harnessing the potential of the big boys in three
continents. Here, too, India will have some explaining to do.
Complexities abound because India is yet to join the Group of 14 at WIPO,
though it had made its intention to do so clear at the October general
assembly.
Debabrata Saha, deputy permanent representative of India at the UN, had
said then that all members of WIPO must "recognise that higher and higher
levels of IP protection, inherent in any harmonisation exercise that takes
no account of the circumstances of each country, is
extremely detrimental". In short, India had questioned whether
harmonisation benefits developing countries at all.
As officials scramble to clarify Delhi's position, experts say the dangers
of a TRIPs-plus harmonisation through the Substantive Patent Law Treaty
(SPLT) at WIPO have not been studied carefully. Some of the SPLT proposals
that have implications for flexibility in TRIPs include three critical
consequences:
Reducing the flexibility of countries to define what constitutes
patentability, such as the requirement for a technical character in
inventions;
Introducing matters of equivalence in international patent rules; and,
Prohibiting countries from imposing any more conditions on patent
applicants other than those specifically provided for in the treaty. There
are clear dangers in the draft SPLT. One such is the item
dealing with industrial applicability or utility. One of the proposed ways
to deal with this is to define industrially applicable inventions as those
which "can be made or used for exploitation in any field of [commercial or
economic] activity". Analysts warn that if this
proposal goes through, it will mean that that anything used in
commercial or economic activity except mere discoveries, abstract
ideas, scientific and mathematical theories, laws of nature, and even
purely aesthetic creations would be patentable.
As patent lawyers see it, this would open the floodgates - to merely
opportunistic business practices and numerous litigations - and
eliminate the current flexibility under TRIPs which allows each
country to define patentability. The entire exercise which the Indian
government is now undertaking - of setting up an expert panel to
define what is patentable - would become irrelevant.
Says Shah: "Upward harmonisation without consolidation would be
foolhardy. These laws have an impact on access to medicines and public
health."
As protests over WIPO's lack of transparency mount, Delhi will find that
it has another battle apart from patents on its hands - that of
credibility.
***
WIPO AND THE DEVELOPMENT AGENDA
IN SEARCH OF THE DEVELOPMENT DIMENSION IN INTELLECTUAL PROPERTY
by Sisule Musungu, South Centre
At the 2004 WIPO General Assembly, 14 developing countries, namely,
Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt,
Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela,
presented a proposal for the 'Establishment of a
Development Agenda for WIPO'.
The proposal suggested various measures which WIPO Members could take in
order to ensure that development is at the heart of all WIPO
programmes and activities, and that WIPO is contributing to the
fulfilment of the Millennium Development Goals (MDGs). Among others, the
proposed measures include: the adoption of a high-level
declaration on intellectual property and development; amending the WIPO
Convention; the inclusion of provisions on technology transfer,
competition etc. in treaties under negotiation; establishing technical
assistance programmes based on particular principles and objectives; and
establishing a working group on the development agenda.
Apart from these specific measures, the proposal also sought to lay a
solid basis for crystallising the meaning and content of the
development dimension in intellectual property policies.
The WIPO General Assembly welcomed the initiative and decided inter alia
to convene inter-sessional intergovernmental meetings (IIM) to have a
focused discussion on the proposal as well as any other
proposals that may be presented by Member States. The IIM would
prepare a report to be considered by the General Assembly at its next
session by 30 July 2005. The General Assembly also instructed the WIPO
Secretariat to organize with other relevant multilateral
organizations, including UNCTAD, WHO, UNIDO and WTO, a joint seminar on
intellectual property and development. The first IIM is scheduled to be
held in Geneva from 11 to 13 April and the seminar on 2 and 3 May 2005.
A Preview of the IIM Meeting
During the debate on the proposal at the General Assembly, though
there may have been nuances with respect to the details, there was very
wide support for the proposal from a majority of developing
countries. On the other hand, most of the industrialised countries,
so-called Group B countries in WIPO, argued that WIPO was already
incorporating development into its activities. The strongest
opposition to the proposal came from the United States. Its delegation
argued that the development agenda proposal "appeared to be premised on
the misconception that strong intellectual property protection
might be detrimental to global development goals and that WIPO had
disregarded development concerns".
The United States has now presented its own proposal for discussion at the
IIM. The proposal essentially proposes the establishment of a
partnership programme for technical assistance in WIPO. The United States
criticism and its proposal as well as the overall approach of Group B,
however, seem to be based either on a misreading of the
proposal or on a well calculated plan to trivialise and side step the
issues raised in the proposal.
In particular, the misconceived idea that the call for a development focus
in WIPO activities means a call for technical assistance is
troubling. This approach is reminiscent of the standard approach in many
other fora where demands by developing countries for development focused
international action are usually met with a promise of
technical assistance. The promises of technical assistance are based on
the idea that such demands are usually misguided and so technical
assistance would wise these countries up.
Looking at the way things are shaping up, it appears that the first task
for the co-sponsors of the development agenda proposal will be to make it
clear that the proposal for the establishment of a development agenda in
WIPO is not a call for more technical assistance. The
proposal is a call for a fundamental shift in the orientation and
functioning of WIPO to bring its action into line with its mandate as a
U.N. agency. Consequently, while improvements in the design,
delivery and evaluation of WIPO's technical assistance may have a role to
play in ensuring that the implementation of intellectual property rules is
development-sensitive, the proposal is of a cross-cutting nature and
addresses many issues including the manner in which
subjects for treaty negotiations are identified and how the actual
negotiations are conducted.
The second and most important task for the co-sponsors and other
supporters of the development agenda will be to set clear benchmarks for
determining whether the outcomes of the IIM and future WIPO
activities meet the development test.
What Outcome Will Meet the Development Test?
To pass the test of development, the discussions at the IIM meetings will
have to address a number of key questions relating to the mandate of WIPO
and participation of public interest groups in WIPO processes,
norm-setting activities and priorities, the design, delivery and
evaluation of technical assistance and technology transfer issues.
The Mandate, Current Programmes and Participation of Public Interest
Groups in WIPO
In the development agenda proposal, while noting that WIPO as a U.N agency
was bound to undertake its programmes in line with the
development objectives set by the U.N such as the MDGs, the
co-sponsors raised the possibilities of amendment the 1967 WIPO
Convention to ensure that the development dimension is an integral element
of the organisation's work programme. In this regard, the IIM will have to
address a number of questions including, among others:
Whether WIPO by virtue of its 1974 Agreement with the U.N.,
recognising it as a U.N. agency with the responsibility for promoting
creative intellectual activity and transfer of technology, has a clear
development mandate;
Whether there is an inherent conflict between the 1974 U.N. Agreement and
the 1967 WIPO Convention, which narrowly focuses on the promotion of
intellectual property?
Whether particular practices and approaches in the past have impeded the
effective implementation of WIPO's U.N mandate;
How WIPO has played its role in fulfilling the MDGs, particularly in the
context of the Millennium Project Report;
Whether the current governance structure of WIPO, including the
existence of an Industry Advisory Commission (IAC), is suited to
ensuring the effective oversight by Member States over the work of the
Secretariat and the implementation of its mandate;
Whether there is an adequate system of objective evaluation of the impacts
of WIPO administered treaties and programmes; and
Whether there is adequate participation by public interest groups
including civil society organisations and consumer groups in WIPO
processes.
New Initiatives for Norm-setting and Current Treaty Negotiations
Currently, WIPO initiatives to implement or change current
international intellectual property standards and to develop rules in new
fields are not based on any objective evaluation of the benefits and costs
especially for developing countries. A number of questions will need to be
addressed by the IIM on how norm-setting activities in WIPO could be
structured to meet the needs of developing countries. These could include
the following:
What are the principles that should guide the norm-setting activities
within WIPO?
How can the different levels of economic and technological development
among WIPO Members be reflected in proposed and future WIPO treaties as
well as in the already existing treaties?
Should a development assessment be required before launching any
initiative? If so, which criteria and indicators should be applied to
determine negative/positive impacts of norm-setting?
What other mechanisms could be established to ensure that norm-setting
activities effectively take into account the interests of developing
countries?
Technical Assistance and Related Activities
WIPO technical assistance programmes and activities have to be
appropriate and effective in helping integrate intellectual property into
the national development goals of developing countries. For this to
happen, the design and delivery as well as evaluation of technical
assistance need to be critically examined and reformed. This
examination and reform should be guided by the following questions, among
others:
What principles and guidelines should underpin the design, delivery and
evaluation of WIPO's technical assistance programmes and what
mechanism are needed to implement them?
What are the key concerns with WIPO's technical assistance including those
identified by bodies such as the U.K Commission on Intellectual Property
Rights and civil society organizations?
What measures, if any, have been undertaken to address these key concerns?
Transfer of Technology
The Development Agenda proposal refers to the need to identify
measures that could be undertaken within the existing intellectual
property treaties to ensure an effective transfer of technology to
developing countries. It also raises the question of how new treaties
should address the question of transfer of technology. To determine how
WIPO could facilitate transfer of technology, the IIM will have to address
the following questions:
What is the impact of intellectual property on transfer of technology?
Why doesn't WIPO have any dedicated process or body to address the issue
of technology transfer when this is a key element of its mandate as a U.N.
agency?
How do existing and proposed WIPO treaties address the question of
transfer of technology?
To what extend has WIPO technical assistance assisted developing
countries implement articles 7, 8 and 40, of the TRIPS Agreement?
--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org
Consumer Project on Technology in Washington, DC
PO Box 19367, Washington, DC 20036, USA
Tel.: 1.202.387.8030, fax: 1.202.234.5176
Consumer Project on Technology in Geneva
1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727
--
Michelle Childs -Head of European Affairs
Consumer Project on Technology in London
24, Highbury Crescent, London, N5 1RX,UK.
Tel:+44(0)207 226 6663 ex 252.
Mob:+44(0)790 386 4642. Fax: +44(0)207 354 0607
http://www.cptech.org
Consumer Project on Technology in Washington, DC
PO Box 19367, Washington, DC 20036, USA
Tel.: 1.202.387.8030, fax: 1.202.234.5176
Consumer Project on Technology in Geneva
1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727