[A2k] Report on WIPO development agenda (1)

[Martin Khor]

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Below please find a report in SUNS on the meeting at WIPO on a development agenda.

martin khor (TWN)




SUNS #5779 Wednesday 13 April 2005

south-north development monitor SUNS [Email Edition]

twentyfifth year  5779  wednesday  13  april  2005

contents

Development: North-South differences emerge in WIPO development meeting
  (Martin Khor and Sangeeta Shashikant, Geneva)

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Development: North-South differences emerge in WIPO development meeting

Geneva, 12 Apr (Martin Khor and Sangeeta Shashikant) -- Strong disagreement on
whether and how to establish a "Development Agenda" emerged as the World
Intellectual Property Organisation (WIPO) began an Inter-sessional Intergovernmental
meeting (IIM) taking place here on 11-13 April.

Proponents of a "development agenda" affirmed that wide-ranging changes were
needed to the mandate of WIPO, the way its activities are conducted and the
principles guiding the "norms" and the negotiations of new treaties, in order that
development concerns are "mainstreamed" into the organisation's work and activities.

The main proponents are 14 developing countries, called the Group of  Friends of
Development.  The presentation of their detailed proposals, made on Monday by
Brazil and Argentina, was further supported and elaborated by many members of the
Group.

Several regional groupings of developing countries, including Africa, Asia and Latin
America and the Caribbean, welcomed the initiative for a Development Agenda in
WIPO and expressed support for parts of the Friends of Development proposals.

Industrialised countries, however, took a different position.  The statement by "Group
B" (comprising developed countries) said WIPO already had a development
dimension, participation of developing countries in all areas of WIPO was ensured,
and WIPO was providing a lot of technical assistance, which could however be
improved.

The developed countries' approach was that strengthening intellectual property rights
(IPRs) would contribute to development, that WIPO was doing a good job in that, and
that the focus of a development agenda would be to improve WIPO's technical
assistance activities. They seemed to favour the use of the existing Permanent
Committee on Cooperation for Development (PCIPD) to take up technical assistance
and development issues.

During the debate on the first day, many developing countries stressed that the
development agenda being proposed could not be equated with more technical
assistance.

The initial part of the meeting was marked by a dispute over the agenda, in particular
on how the outcome or conclusions of the meeting is to be reported.   The draft
agenda, prepared by WIPO's secretariat (known as the international bureau), has
"Future work" as its fifth item and "Summary by the Chair" as the final item.  There
was no item on adoption of the meeting's report.

Several developing countries, including Jamaica, Brazil and India, insisted that the
adoption of the meeting's report be included in the agenda (as is the normal practice
in WIPO meetings) and that the Chair's summary would only be a factual account of
proceedings and not, as the meeting's Chairman Ambassador Rigoberto Gauto
Vielman of Paraguay had indicated, a statement on future work.

The developing countries wanted the results of the agenda item "Future work" to be
incorporated in the report of the meeting, instead of this being the subject of the
"Summary by the Chair."

The Chairman said that a factual report of the Secretariat was going to be the subject
of consultations with the delegations. However, the report to decide on the evolution
of the work of the IIM will be done by the Chair.

Many delegations were not in agreement with the Chairman's suggestion. Argentina
said that flagging of future work was not the responsibility of the Chair. Brazil said
that there was no mention in the Agenda of a statement by the Chairman. The
Chairman was only to give a factual summary.

After a lengthy debate, it was finally decided that the adoption of the draft report
would be included as item number 7.

It was also decided that 17 NGOs would be allowed on an ad-hoc basis to attend the
IIM on the understanding that this would not create a precedent for future meetings.
Earlier, more than a thousand NGOs had signed a statement to WIPO protesting an
announcement that only NGOs accredited to the WIPO General Assembly could be
present.

Four papers had been tabled for the meeting, and the delegations submitting them
(Group of Friends of Development, the US, the UK and Mexico) introduced them.

The paper by the Group of Friends of Development contains proposals for bringing
forward the Development Agenda through reviewing the mandate and operations of
WIPO, establishing principles and guidelines for norm-setting, a review and reform
of WIPO's technical assistance activities, and establishing a programme for
technology transfer.  (See SUNS #5778 of 12 April 2005).

The US paper proposes a "WIPO partnership program", an internet-based tool to
connect potential partners and stakeholders (especially donors and recipient countries)
on IP related issues and activities, staffed by a new WIPO partnership office.

The UK paper presents aspects of the Independent Commission on IPRs (set up by
the UK government), including an "overriding message" that IP regimes can and
should be tailored to take into account individual country's circumstances in the
framework of international agreements like TRIPS.  However, the paper goes on to
advocate further harmonization of patent laws through WIPO.  It agreed that WIPO's
technical assistance needs to be better coordinated and assessed.  The Permanent
Committee on Cooperation for Development (PCIPD) could be used for discussions
on technical assistance.

The Mexico paper also suggested that the PCIPD be used, to include within it
activities to disseminate the IP system in developing countries, and an assessment to
be conducted.  It also suggests that WIPO call a meeting of national patent offices and
NGOs to discuss regional mechanisms to conduct the assessment.

At the meeting on Monday, Brazil introduced the proposal of the Group of Friends
of Development or FOD (Argentina, Bolivia, Brazil, Cuba, Dominican Republic,
Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and
Venezuela).  It said that the paper is not rhetoric or declaratory, but contains concrete
proposals that could be the basis of further substantive discussions on how to
strengthen WIPO so that it caters to the large constituency of developing countries.

The FOD see the proposal as a "platform for substantial debate in WIPO" as it gives
the broad perspective on how the FOD view intellectual property and development.
Brazil indicated that the FOD wish to avoid fragmentation of the elements raised in
the proposal, saying it was essential that the different ideas continued to be discussed
in its entirety. The document is presented on a "modular fashion and so the discussion
can be taken on a step by step basis".

Brazil said that the FOD considered the Development Agenda to be a permanent item
on the agenda of WIPO.  It is an agenda with cross-cutting issues and has an impact
on all aspects of IP and on all WIPO bodies, thus the FOD does not want its proposal
or the issue to be assigned for discussion to only one specific body in WIPO.

Argentina then elaborated on the main points and proposals in the FOD paper,
stressing the principles, guidelines and implementation mechanisms being proposed.
Among the points stressed were the need for WIPO to have more member-driven
structures and procedures; the proposal to establish an independent evaluation and
research office which would evaluate the development impact of WIPO's activities;
guidelines and mechanisms for WIPO's work on norm-setting (or establishing of
treaties and rules); guidelines for WIPO's technical assistance, which should be
adopted at the next General Assembly; and pro-development approaches to
technology transfer.

Dominican Republic, South Africa, Bolivia and Egypt were among FOD members
that spoke in support of the Brazil and Argentina statements, and they emphasized
that establishing a development agenda in WIPO or a development dimension in IP
is not the same as technical assistance.

South Africa stressed that it will not support any suggestion that propounds technical
assistance as the development agenda.  It called on all Member States to look
carefully at all the elements of the FOD proposal which is not limited to technical
assistance and hoped the process will proceed on the basis of all elements. It reiterated
that the commitment to ensure that development is incorporated into WIPO has to be
holistic and that WIPO like other UN agencies has to be guided by the broader
development goals of the UN.

According to the Egypt delegate, the development dimension should be at the core of
all agreements agreed to at WIPO, but this cannot take place if the elements in the
FOD's proposal are not considered.

China also agreed that WIPO's development programme should not be limited to
technical assistance and was of the view that the FOD proposal provided an
opportunity to study the issue of development.

The Africa Group, coordinated by Morocco, renewed its support in principle for the
proposal for the establishment of a Development Agenda for WIPO submitted by the
FOD, calling it an ambitious initiative aiming at giving the visibility needed with
respect to the importance of incorporation of the development dimension in WIPO's
programmes and activities.

Morocco said the Africa Group shares many of the concerns raised in the proposal
concerning IP and development.  However, the proposal can be improved as it did not
deal with some issues of importance to the African countries, notably the issues of IP
pertaining to genetic resources, traditional knowledge and folklore.

The Africa Group said it was convinced that IP should not be considered an end in
itself but a major vector for development.  It highlighted many concerns that should
be taken into account, including the assessment of the costs and the advantages of the
implementation of IP protection and introduction of norms setting; the need to take
into account countries' different levels of development and public objectives (such as
health and biodiversity and access to information and knowledge); and the balance
of rights between rights holders and society.

The Group said the needs of African countries go beyond technical assistance
programmes and capacity building.  It also stressed the need to facilitate technology
transfer and improving countries' capacity to assimilate technology.  It said that it is
incumbent on WIPO to endeavor to facilitate this technology transfer to developing
countries, as a specialized agency of the UN and in compliance with the UN-WIPO
Agreement.

With regard to the US proposal, Morocco said some aspects complemented the FOD
proposal.  However, it had some reservations regarding the conceptual basis, as the
US proposal assumes the existence of infrastructures enabling access to the internet
in all countries. Owing to the digital divide, not all countries possess the same internet
facilities, and the US proposal should be linked with efforts to narrow this digital
divide.

Benin, on behalf of LDCs, welcomed the different proposals and said that they would
like development to be incorporated in all programmes of WIPO.

Singapore on behalf of the Asia group welcomed the proposal of the FOD and said
that it served as a good basis for a constructive dialogue. Mainstreaming the
development dimension into all activities of WIPO should be a priority for the
organization and this is in line with the continuing focus of work in the UN and other
international fora aimed at fulfilling the UN MDGs.

Protection of IP is not an end in itself and there is no "one size fits all" approach in
implementing IPR commitments. WIPO's work in implementing the Development
Agenda should be undertaken in a balanced manner, guided by unique and peculiar
circumstances in each country and based on public policy considerations and national
developmental priorities.

The Asia Group said "the national policy space of each country must be respected,
especially when developing countries are asked to assume international obligations.
The Development Agenda should take into account any negative impact on the users
of IP, on consumers at large and on public policy in general, not just the interest of
IP owners. It is vital to inject this balance and equity into the various WIPO bodies".

It expressed it willingness to stand ready to "contribute to an international intellectual
property system that is well-balanced and sensitive to the needs of developing
countries and LDCs" as well as to a system that would "promote research, stimulate
creativity and encourage innovation for the benefit of societies as a whole."

Singapore also read a statement on behalf of the ASEAN states. It welcomed any
initiative aimed at contributing towards integrating the development dimension into
all areas of WIPO's work and activities. The statement elaborated on the various
ASEAN-WIPO activities that have been undertaken, and praised WIPO for focusing
on "implementing IP in a manner that supports economic growth and wealth
creation."  The statement was seen by several delegates and observers as subtly
suggesting, contrary to the views of the FOD, that WIPO already has adequately
incorporated the development dimension in technical assistance activities.

Pakistan, associating with the Asia Group statement, said that the many proposals
should not distract from the core issue which is to ensure that the IP system provides
states at different levels of development with the necessary policy space to meet their
development needs. Where these flexibilities do not exist, they would need to be put
in place.

It added that there is need to examine existing IP instruments and the idea of a
"development impact assessment" merits close attention as this would ensure more
balanced norm-setting and facilitate efforts to evolve consensus on norms required
to meet new challenges.

On behalf of the Latin America and Carribean group (GRULAC), Jamaica said the
development dimension of IP is an integral part of any discourse on IP and standard
setting.   While the IP system is seen by many as an important aspect of national
economic policy, the system must address the fundamental concerns of developing
countries in order to be used as a catalyst for development.

"That is why WIPO as a UN agency whose constituents are mostly from developing
countries, and which is charged with the mandate of promoting IP, must address fully
the concerns of developing countries in all aspects of its work."

IP is not a panacea for development.  The WIPO Development Agenda is seeking to
strengthen WIPO's contribution in the area of development.  But, it stressed, "the
Development Agenda is not just about strengthening of technical assistance both
quantitatively or qualitatively, it encompasses other important areas including norm
setting and transfer of technology."

Italy, on behalf of Group B (which comprises the developed countries in WIPO), said
it welcomed discussing further the relation between development and IP in WIPO. It
said IP has served as a tool for development and further development of the
international IP system, including harmonization, would lead to a simpler and
easier-to-use IP system.

It added that the development dimension is not new for WIPO and WIPO has ensured
the participation of developing countries in all areas, and member states are free to
pursue their objectives in all WIPO treaties and new issues of interest to developing
countries (such as genetic resources) have become an important part of the WIPO
agenda.

Group B stressed the technical assistance work of WIPO and said it is time for an
"urgent stock taking and evaluation" of WIPO's activities in this field, whether they
address the needs of recipient countries and how they can be better coordinated with
the programs of other international organizations.

The Group encouraged the WIPO's Secretariat to conduct a comprehensive
assessment of WIPO's activities in the development field and to report to the
Permanent Committee on Cooperation for Development related to IP. Group B saw
this Committee as the "appropriate forum" to deepen the future debate.

Luxembourg on behalf of the 25 EU member states embraced the UK proposal and
welcomed the US proposal, calling it pragmatic.

Delegations of the US, UK and Mexico, which had also submitted papers, made clear
in their statements that they did not support the establishment of new bodies in WIPO
to deal with the development agenda.

The US said it saw WIPO's role primarily as protecting IP, as there are other UN
agencies that are development agencies. According to the US,  the current WIPO legal
framework provided ample room to address the concerns of developing countries, and
it did not support the setting up of new bodies. If the Member States were not happy
with the current bodies, then these bodies could be reviewed.

The US also made it clear to the meeting that it "would not want to change the WIPO"
in a direction that would diminish the support it currently enjoys from the US.

The UK referred to itself as a Friend of Development as well but rejected the idea that
new bodies had to be created or that there was a need to amend the WIPO Convention
as proposed by the FOD proposal.

According to Mexico, it is the lack of knowledge of the IP system that has generated
tensions in developing countries and so there should be efforts to ensure that
knowledge on IP be disseminated, further saying that creation of other bodies will not
help.

The US was on the defensive while presenting its proposal on the creation of a
"WIPO Partnership Program", an internet-based tool that will "bring together all
stakeholders to match specific needs with available resources and to amplify the
developmental impact of intellectual property development assistance", saying that
it was not just about technical assistance. This programme is intended to address the
need for better coordination, to learn the actual needs of developing countries and to
make IP development assistance more relevant to them.

The Swiss delegation expressed surprise over the WIPO Development Agenda since
in its view, this already exists and does not need to be established. Rather than a new
process,  what should be done is to adopt a more pragmatic approach to use the
processes that already exist and that have borne much fruit so as to reach concrete
long lasting results.
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