[A2k] Proposals to reform WIPO on Development

[Martin Khor]

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WO/GA/31/11 (in English)TWN Info Service on WTO and Trade Issues (Apr05/5)
13 April 2005

Third World Network

www.twnside.org.sg





Developing countries present comprehensive plan to reform WIPO

A four-point proposal to establish a "Development Agenda" and reform the Wo=
rld Intellectual Property Organisation (WIPO) has been put forward to WIPO =
members by 14 developing countries in the Group of Friends of Development.

On behalf of the Group, Brazil submitted a comprehensive 30-page paper cont=
aining many critical conceptual points on intellectual property, developmen=
t and WIPO's performance, and accompanied by concrete reform proposals.  It=
 is the main basis for discussions at a WIPO inter-sessional intergtovernme=
ntal meeting (IIM) on a Development Agenda for WIPO on 11-13 April in Genev=
a.

The new paper contains four main proposals: a review of the mandate and gov=
ernance of WIPO; promotion of pro-development norm-setting in WIPO;  establ=
ishing principles and guidelines for WIPO's technical assistance work and e=
valuation; and guidelines for future work on technology transfer and relate=
d competition policies.

Below is an article that summarises the key points of the Friends of Develo=
pment paper.  It was published in the SUNS Bulletin on 12 April 2005.



With best wishes

Martin Khor (TWN)

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Developing countries present comprehensive plan to reform WIPO

By Martin Khor, Geneva, 11 April 2005

A four-point proposal to establish a "Development Agenda" and reform the Wo=
rld Intellectual Property Organisation (WIPO) has been put forward to WIPO =
members by 14 developing countries in the Group of Friends of Development.

On behalf of the Group, Brazil submitted a comprehensive 30-page paper cont=
aining many critical conceptual points on intellectual property, developmen=
t and WIPO's performance, and accompanied by concrete reform proposals.  It=
 is expected to be the main basis for discussions at a WIPO inter-sessional=
 intergtovernmental meeting (IIM) on a Development Agenda for WIPO to be he=
ld on 11-13 April.

The Group comprises Argentina, Bolivia, Brazil, Cuba, Dominican Republic, E=
cuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and =
Venezuela.  They had co-sponsored a proposal to establish a "Development Ag=
enda" at WIPO's General Assembly on 27 Sept-5 Oct last year.  The new paper=
 is an elaboration of the original proposal.

Arising from discussions on the proposal, the General Assembly mandated tha=
t WIPO hold inter-sessional intergovernmental meetings be held to discuss t=
he issue (and report back to the General Assembly), and that WIPO organise =
a public symposium on intellectual property and development.

The new paper contains four main proposals: a review of the mandate and gov=
ernance of WIPO; promotion of pro-development norm-setting in WIPO;  establ=
ishing principles and guidelines for WIPO's technical assistance work and e=
valuation; and guidelines for future work on technology transfer and relate=
d competition policies.

In an introduction, the Group says its main concern is to ensure that WIPO =
activities are driven towards development-oriented results. The basic propo=
sal of the "Development Agenda" is that development should be a central dim=
ension in any negotiation involving IP systems.

WIPO has focused on the diffusion of standardized approaches to IP policies=
 that uncritically assume that development follows suit as IPR protection i=
s strengthened. Current worldwide debate questioning the appropriateness of=
 such an approach has not been reflected in WIPO's work. Rather, discussion=
s in WIPO have overlooked the implications of increased and standardized IP=
R protection in terms of access to and diffusion of science, technology and=
 related knowledge and know-how.

The Group says the "Development Agenda" promotes a critical examination of =
the implications for developing countries of the adoption of increased IPR =
protection, rather than approach this highly controversial issue from the o=
ne dimensional perspective of the private rights holders, ignoring the broa=
der public interest.

The "Development Agenda" recognizes that IP is relevant to building technol=
ogical capacity, but also stresses the importance of public interest flexib=
ilities provided for by the IP system for formulating development-oriented =
policies.



IP is not an end in itself, but as a means for promoting the public interes=
t, innovation, and access to science. It is incumbent upon WIPO, therefore,=
 to effectively incorporate development promotion as one of its main goals,=
 as already foreseen by the UN-WIPO Agreement.

The balance between the public interest and those of rights holders, as wel=
l as the balance between the interests of the scientific community and thos=
e of the technology and IP based industries should be struck and IP agreeme=
nts should address different levels of development of member countries, the=
ir social needs and industrial challenges as well as their capacity to part=
icipate in and benefit from the IP system.



In its proposal for the review of the mandate and governance of WIPO,  the =
Group says that WIPO as a member of the United Nations family should be gui=
ded by the development goals of the U.N and that development concerns shoul=
d be fully incorporated into WIPO programmes and activities.



The Group proposes that WIPO address impediments to implementing its UN man=
date.and that its  Member-based governance structures should be strengthene=
d.



The 1967 WIPO Convention specifies the aim to "promote the protection of in=
tellectual property".  But the 1974 UN-WIPO agreement established WIPO as a=
 UN specialized agency with the responsibility for "promoting creative inte=
llectual activity and for facilitating the transfer of technology related t=
o industrial property to the developing countries in order to accelerate ec=
onomic, social and cultural development."



It is highly questionable that upward harmonization of intellectual propert=
y laws, leading to more stringent standards of protection in all countries,=
 irrespective of their levels of development, should be pursued as an end i=
n itself. WIPO must, as a matter of course, examine and address all feature=
s of existing intellectual property rights, including the economic and soci=
al costs that IP protection may impose on developing countries on consumers=
 of knowledge and technology in both the North and the South.



Higher standards of protection should be undertaken only when it is clearly=
 necessary and appropriate for the promotion of creativity and the transfer=
 of technology, and where the benefits outweigh the costs of protection. An=
y attempts to pursue upward harmonization of intellectual property protecti=
on, without proper consideration of the potential costs of such initiatives=
 for developing countries and consumers and the public, would be at odds wi=
th WIPO's U.N. mandate.



It is important to mainstream the development dimension into all of WIPO's =
substantive and technical assistance activities.  The Group proposes that M=
embers States consider amending the WIPO Convention (1967) to bring it in l=
ine with WIPO's mandate as a UN specialized agency



Principles and guidelines should be formulated to govern WIPO's operations.=
 WIPO should operate as a Member-driven institution, where the role of the =
Secretariat is limited to facilitating the work of the Members and to imple=
menting decisions and instructions received from Members.



A WIPO Evaluation and Research Office (WERO) could be established, which wo=
uld operate independently of the WIPO Secretariat. Measures should be taken=
 to ensure wider participation by civil society and public interest groups =
in WIPO discussions and activities;

.

On promoting pro-development norm-setting in WIPO, the Group says that inte=
rnational IP standards have placed unprecedented limits on the ability of d=
eveloping countries to tailor their IP regimes to meet their needs.


Challenges faced by developing countries in "enforcement" of higher minimum=
 international standards of protection favouring right holders must be bala=
nced by effective use and promotion of flexibilities contained in the IP sy=
stem, such as Articles 1.1 and 41.5 of the TRIPS Agreement, which explicitl=
y recognizes that theses countries have retained the freedom to determine t=
he appropriate form of implementation of their obligations in the area of i=
ntellectual property.


These standards have been designed and expanded with little consideration f=
or their actual costs and benefits to developing countries.  International =
norm-setting has been dominated by a paradigm that regards IPRs as the only=
 and beneficial instrument to promote creative intellectual activity. Incre=
ased scope and levels for intellectual property protection thus often becom=
e ends in themselves in international negotiations.


The Group says that WIPO has a significant role in ensuring that IP rules a=
dvance development objectives and bears a special responsibility in overcom=
ing current limitations in international norm-setting.



Until now, norm-setting in WIPO has focused on encouraging international ag=
reements solely designed to promote the IP protection, exemplified by the I=
nternational Bureau's attempt to launch initiatives such as the WIPO Patent=
 Agenda, and its active engagement in support of treaties currently under n=
egotiations, which do not respond to development objectives, are cases in p=
oint. To rectify this situation, WIPO should pursue a more balanced and com=
prehensive approach to norm-setting, emphasizing rules and standards that a=
ddress the development objectives.



The Group proposes principles and guidelines to apply to all WIPO norm-sett=
ing activities, including:



-- Member-driven and Transparent Work Plan.  The Group says that the WIPO S=
ecretariat has often played an active role in norm-setting processes, there=
 has not been an adequate debate, the views of developing countries have be=
en ignored, and negotiations have been launched without real consensus.  It=
 proposes that the WIPO Secretariat should not play a substantive negotiati=
ng role by endorsing or supporting particular proposals.  The right and bur=
den should be on Member States to propose initiatives and priorities for th=
e work plan of WIPO and its different bodies.



--  Assessment and Justification in Terms of Sustainable Development. Any d=
evelopment, implementation or modification of IPR rules should be based on =
sustainable development needs.  All norm-setting activities in WIPO should =
be based on empirical evidence and on a cost-benefit analysis.  The desirab=
ility of IP options vis-a-vis other non-IP and non-exclusionary options sho=
uld be analyzed on a case-by-case basis.  Alternatives within and outside t=
he IP system that would reach similar objectives with less monopoly of know=
ledge (for example, open access models) should be particularly considered. =
  Indeed, WIPO should seek ways to safeguard and promote the public domain =
and the innovative and creative activities that depend on it.



-- Recognition of Different Levels of Development.  Different levels of dev=
elopment of Member States should be recognised in WIPO norm-setting and ref=
lected in special and differential treatment provisions.



--  Recognition of the Rights of Different Stakeholders.    The Group says =
that in many cases WIPO solely considers the interests of those that seek n=
ew or increased IPRs. In the Copyright committee, little consideration has =
been given to the rights of performers, authors, educators, students and co=
nsumers.  Similarly, when future work was discussed in the patents Committe=
e, only the approach of patent holders was focused on. Such a narrow percep=
tion of the constituencies should be replaced by consideration of the right=
s and interests of a broad range of stakeholders, as well as promoting thei=
r active and effective participation in WIPO's work.



-- Compatibility with other International Instruments. WIPO processes and o=
utcomes should be compatible with and support other international instrumen=
ts that advance those development objectives. For instance, under no circum=
stances can human rights - which are inalienable and universal - be subordi=
nated to IPRS.  IP must support rights and objectives in the Millennium Dev=
elopment Goals (MDGs), the Plan of Implementation of the World Summit on Su=
stainable Development, and the Convention on Biological Diversity.



--  Implementing pro-development principles. The Group proposes a "Developm=
ent Impact Assessment" (DIA) of each norm-setting initiative for sustainabl=
e development indicators such as innovation, access by the public to knowle=
dge and products, job creation, poverty alleviation, equity, respect for cu=
ltural diversity, protection of biodiversity, health, and education, partic=
ularly in developing and least developed countries.



There should be provisions recognizing the difference between developed and=
 developing WIPO Member States in all norm-setting initiatives. These provi=
sions should recognize over-arching objectives and principles of IP protect=
ion, provide longer compliance periods, promote transfer of technology, saf=
eguard national implementation of intellectual property rules, suppress ant=
i-competitive practices.  Such provisions have been proposed by developing =
countries in the draft Substantive Patent Law Treaty (SPLT).



The Group also proposes the holding public hearings prior to the initiation=
 of any discussion toward norm-setting in WIPO, with the broad participatio=
n of different stakeholders.



The paper says that WIPO's technical assistance (TA) has come under critici=
sm. Concerns relate to the underlying philosophy, content and process of WI=
PO's technical assistance provision. They also include that IP is seen as a=
n objective in itself; solutions tend to be identified and designed by the =
providers and not by the beneficiaries of the assistance;  there is a tende=
ncy to over-emphasize the benefits of intellectual property while giving ve=
ry little attention to the limitations and actual costs.



Also, the content of the technical assistance programmes has mostly focused=
 on the implementation and enforcement of obligations and not on the use of=
 in-built rights and flexibilities in international treaties for developing=
 countries. WIPO also provides model laws to developing countries without s=
ufficient or any accompanying advice on the trade and development effects o=
f these laws and full analysis of the evidence regarding economic effects



The Group proposes principles and guidelines to improve WIPO's technical as=
sistance (TA).

It says TA should take account of different levels of development and build=
 countries' capacity to fully use pro-development flexibilities in internat=
ional agreements. The use of model IP laws without careful evaluation of th=
eir effects should be discouraged.



TA programmes should include the use of competition law and policy to addre=
ss abuses of intellectual property.  The provision of technical assistance =
should be neutral and of advisory nature based on actual and expressed need=
s. WIPO technical assistance staff and consultants should be fully independ=
ent and potential conflicts of interest should be avoided.



The Group also suggested pro-development TA be implemented through technica=
l adoption of the proposed Principles and Guidelines by the 2005 WIPO Gener=
al Assembly, establishment of Databases and Dedicated Webpage, separating t=
he functions of the WIPO Secretariat, a Code of Ethics and assuring indepen=
dence of consultants,  and indicators and Benchmarks for Evaluation



The Group also proposes guidelines for future work on technology transfer a=
nd dissemination, and related competition policies.   It says that patents,=
 trade secrets, copyrights, and trademarks, however, can hamper tech-transf=
er.



A dynamic approach to transfer technology should incorporate policies with =
respect to:  protection criteria (e.g. patentability); duration of rights b=
eyond a reasonable time to justify rewarding innovation and creativity; exc=
eptions to exclusive rights; use of public tools (e.g. disclosure and worki=
ng requirements, compulsory licensing, open source software); system of pro=
tection relevant to national circumstances; and administrative and procedur=
al aspects.



The paper calls for WIPO to take initiatives to get developed countries to =
provide assistance to improve the ability of countries to absorb technology=
; fiscal benefits to firms transferring technologies to developing countrie=
s; same tax advantages for R&D performed abroad as for R&D done at home.



It also proposes multilateral initiatives such as commitments like those co=
ntained in Article 66.2 of the TRIPS Agreement, a fee on applications throu=
gh the Patent Cooperation Treaty, to be used for R&D activities in developi=
ng countries; and an intermediary conduit to reduce the asymmetric informat=
ion problem in private transactions between technology buyers and sellers; =
and a multilateral agreement where signatories would place into the public =
domain the results of largely publicly funded research.



The Group also proposes measures to boost competition policies. To counter =
IP-related anticompetitive behaviour, competition policies should be introd=
uced to prevent the abuse of IPRs.



WIPO's technology transfer work may address elements such as: model approac=
hes on how to implement the relevant provisions of TRIPS;  the inclusion in=
 new intellectual property treaties (such as the SPLT) of relevant provisio=
ns to deal with anti-competitive behaviour or abuse of monopoly rights by r=
ights holders,  the development of an international framework to deal with =
issues of substantive law relating to anti-competitive licensing practices;=
 implementation of intellectual property policies in developing countries s=
hould be matched with appropriate enforcement mechanisms that effectively r=
estrain anti-competitive behaviour;  Developed countries authorities to und=
ertake, at the request of affected countries, enforcement actions against f=
irms headquartered or located in their jurisdictions.


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