[A2k] What Next for the Development Agenda at WIPO?

[carolyn.deere@bluewin.ch]

Dear Colleagues,

I am writing to forward a copy of the attached article, What Next for the
Development Agenda at WIPO? Priorities for 2006, just published in the February
issue of BRIDGES Monthly (published by the International Centre for Trade
and Sustainable Development).

I hope that you find it a useful contribution to the discussion.

With best wishes,


Carolyn Deere
Global Economic Governance Programme
University of Oxford

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What Next for the Development Agenda at WIPO? Priorities for 2006

BRIDGES Monthly (ICTSD, February 2006)

by Carolyn L. Deere

In February 2006, WIPO?s Provisional Committee on Proposals Related to a
WIPO Development Agenda meets for the first time. In launching the Development
Agenda discussions in 2004, WIPO?s members recognised that intellectual property
(IP) policies and laws raise a complex set of development considerations
and that efforts should be made to ensure WIPO?s work properly addressed
this challenge.

In the first year?s discussion, however, little substantive progress was
made. Often submerged in procedural debate, many members became frustrated
and the space for dialogue diminished. Betraying the importance of the issues
at stake, detractors pushed the idea that the Agenda was a purely political
exercise driven by a select group of countries. This year, the Development
Agenda must be accorded the respect and serious engagement that the issues
it raises deserve.

Charged with presenting concrete decisions for consideration at the 2006
General Assemblies, the Provisional Committee has just three meetings and
less than eight months to fulfill its mandate. With the question of how and
where to proceed with discussion of the Development Agenda resolved, what
are the core priorities for getting the Committee?s discussion off on the
right track?

Substantive Discussion of Development Agenda Proposals

Attention this year must focus on substantive debate on existing and new
proposals. Concrete decisions should be made on those proposals that already
attract broad-ranging interest or support, such as proposals for mechanisms
to ensure more demand-driven and effective technical assistance, stronger
evaluation of WIPO programmes and activities, improved internal management
and oversight, and a code of ethics for staff and providers of WIPO?s technical
assistance. Equally, there must be serious engagement with the more contentious
proposals; this in turn will demand a far more sophisticated dialogue on
the relationship between IP and development than has occurred thus far.

In the 2005 discussions of the Development Agenda, a good deal of time was
spent dispelling misunderstandings and building mutual understanding on some
of the basics (for instance, none dispute that IP can be a tool for development;
none deny that WIPO has devoted considerable resources to the administration
and implementation of IP policies and that many developing country member
states have been grateful for the assistance). This year, all actors need
to resist the temptation to spend any more time either on political posturing
on these matters or on over-simplifications that erode the quality of discussion
(i.e., IP is always good for development; IP is always bad for developing
countries; IP technical assistance is always good for development; or, more
IP protection is always better).

We know that development is a multi-faceted concept that comprises multiple
public policy objectives. In 2006, the starting point for discussion must
be the acknowledgement that an IP policy that is good for one aspect of development
may compromise the achievement of another, and an IP policy that works at
one stage of development may at another point constitute a constraint. Only
with this nuanced approach will there be scope for intelligent consideration
of the most forward-looking proposals on the table, including calls for development
impact assessments of proposed new international norms, and new strategies
for promoting access to knowledge and protecting information in the public
domain.

In 2006, WIPO member states will also need to engage substantively with proposals
for institutional mechanisms that ensure development retains the organisational
priority it deserves on a systematic, long-term basis. Here, lessons ? good
and bad ? from the experience of other international organisations in ?mainstreaming?
cross-cutting objectives into their work may be instructive ? whether development
in the WTO context, gender at the World Bank, or poverty alleviation at the
IMF.

Build Cross-regional Coalitions and Alliances at the Multilateral Level

Advancing the WIPO Development Agenda will demand greater effort among all
stakeholders to understand different perspectives, solve problems and build
consensus where possible. In 2006, the supporters of the Development Agenda
? among them both developing and some developed countries ? must devote more
energy to bolstering and expanding their coalitions and looking for alliances
among industry, civil society and countries that share particular interests.

With billions of dollars on the table, the determination of the most powerful
states to defend and advance their share of the global knowledge economy
for commercial interest groups will continue to translate into intense pressures
on developing countries to defect from coalitions and/or adopt positions
preferred by key developed countries and industries ? ranging from promises
of more aid, letters to presidents, and efforts to sideline Geneva diplomats
in favour of less politically-aware officials in capitals. These forces are
most difficult to resist for those countries most dependent on WIPO and others
for development financing. In this context, it is imperative that the more
active and better-equipped developing countries and development advocates
devote greater attention throughout the year to talking with, listening to
and exchanging views with a broad range of members ? from the poorest to
the richest.

Monitor and Transform Procedural Matters at WIPO

Procedural challenges at WIPO can be expected to continue over the coming
year. Reflecting on the 2005 WIPO Assemblies, one delegate likened WIPO to
a DisneyWorld ? a virtual reality in which things are never quite as they
seem. Although the Secretariat keeps assuring countries that WIPO is indeed
the member-driven organisation they expect, even the most sanguine observers
concur that the WIPO Secretariat has a distinctive organisational culture.
In the past year, closer scrutiny of WIPO?s activities by members and external
observers has brought to the public?s attention a pattern of exceptional
and sometimes undue influence on the intergovernmental processes which are
supposed to govern its workplan and norm-setting activities (evidence of
a series of financial and management irregularities has also emerged).

Fairer, more transparent processes will require action from members and also
from the Secretariat. The accountability of WIPO and its member-driven character
relies on the commitment of member states to attentive, constructive and
probing engagement in its work. Geneva-based negotiators need to keep their
capital-based colleagues within and beyond the IP office better-informed
of the range of issues and processes in play ? and to stand their ground
on matters of process. Where resources are limited, developing countries
will need to share and delegate responsibility for following the technical
but politically significant aspects of WIPO?s work (including the organisation?s
programme and budget process and its new audit procedures).

To guard against pressures from commercial interests and powerful members
that might prejudice the Secretariat?s neutrality, the membership needs to
consider institutional reforms that promote greater transparency and clarify
procedures. It also needs to devise mechanisms to ensure the Secretariat
consults with a broader range of external stakeholders than its traditional
constituency of IP holders.  To this end, the Committee could call for an
exploration of the best practices of other UN agencies for soliciting external
input and increasing the quality of its engagement with the full range of
stakeholders ? including improved communications, more opportunities for
dialogue, greater opportunities to make materials available to WIPO member
states and greater use of expertise from a diverse range of perspectives.


Harness Public Interest and Expertise in Multilateral and National Policy-making
Processes

Finally, the Development Agenda discussion will benefit from intensified
efforts to harness public interest, expertise and support both at WIPO and
at the national level. Across the international system, consultation with
key stakeholders is now considered a basic requisite for evidence-based,
fair and predictable international processes. In 2006, the three-day informal
open forum on all issues related to the proposed Substantive Patent Law Treaty
provides an opportunity to test one of the recommendations of the elaborated
Development Agenda proposal: public consultation on WIPO?s norm-setting activities.
To achieve success, the forum will have to enable member states to properly
weigh the merits and pitfalls of proposed norms, consider different options
and hear from the diversity of perspectives necessary to devising a balanced
approach. Non-governmental observers, for their part, should take up the
opportunity to provide substantive inputs, and to elaborate and evaluate
the various proposals.

The quality of discussions in WIPO will also depend on the commitment of
member states to consultative national level policy-making processes that
engage the full range of relevant domestic ministries and key non-government
stakeholders from industry, civil society and academia. More effective and
better-informed domestic processes will help all countries develop more coherent
domestic IP policy strategies, ensure that international positions reflect
the broad range of national interests and maintain consistent international
strategies. More systematic interaction and linkages between analysts in
the fields of IP, investment, innovation, development, and science and technology
is one necessary step. In developed countries, industry, academics and civil
society groups need to continue to push for both domestic IP policies and
international IP agendas that reflect and balance the diversity of industry
interests, public concerns and international responsibilities.

A More Enabling Disposition from the WIPO Secretariat

It is no secret that the not all within the WIPO Secretariat welcomed the
launch of the Development Agenda. Many staff felt the call for the Development
Agenda reflected a misunderstanding or lack of appreciation for the organisation?s
work. Within the Secretariat, the more forward-looking staff believe that
the organisation ought to be less defensive and instead embrace the Development
Agenda as an opportunity to bolster WIPO?s long-term relevance and credibility.
They understand that increased engagement by developing country member states
must be welcomed as crucial to the organisation?s vitality and viability.
In the coming year, the success of the Development Agenda will rely on those
with such a vision to take greater leadership.

WIPO?s greatest challenges emerge not, as staff at the Secretariat often
appear to fear, because it is failing to generate higher IP standards quickly
enough, but because it is yet to respond to the changing needs of many of
its members, the growing public interest in its work, and the fact that its
activities have a far more critical influence on the direction and outcomes
of global economic activity and social welfare than ever before.

As the knowledge-economy expands, a growing number of government agencies,
scientists, public-interest groups and industries ? from both developed and
developing countries ? share common priorities and concerns with respect
to IP policy that defy a North-South divide. The convergence of interests
and potential coalitions vary from issue to issue, but it is clear that as
new technologies and business models alter economic dynamics, the pressure
to properly explore the range of possible options for promoting innovation,
creativity and economic dynamism are here to stay ? whether through altering
the approach to IP policies, using such policies more creatively, or looking
beyond them.

To be sure, many countries still need basic assistance, education and training
on the implementation of international IP obligations, the options before
them, and the costs and benefits of different approaches in light of their
development goals. But they need advice that provides them access to the
best available thinking. A sustainable long-term vision for WIPO thus must
be one that focuses on broadening the Secretariat?s expertise, taking up
the most cutting-edge conceptual issues, acknowledging that there are no
simple answers, reflecting on changing business realities, and engaging with
innovative new ideas. This approach would open up the scope for WIPO to raise
its international profile as a thoughtful player in global policy debates.

In moving toward this broader vision, the WIPO Secretariat will find that
it attracts more enthusiasm and a broader constituency for its work. The
recent admission of a range of NGOs as WIPO observers provides the Secretariat
and membership with a new set of allies for more creative, forward-thinking
work. A broad array of industries ? both IP holders and not ? are showing
a growing interest in WIPO?s work and looking to it for an expanded vision.
Many member states and stakeholders are signaling to the Secretariat that
it can rely on their support were it to respond more positively to calls
for greater thinking on new international guidelines or norms on the public
domain, on access to knowledge, and for new approaches to stimulating and
rewarding medical R&D.

Taking seriously its mandate as a UN specialised agency, WIPO would also
find allies in other international and regional organisations if it devoted
more energy to collaborating with their efforts related to the future of
innovation, creativity, technological development and access to technologies
and information.

Carolyn Deere is a Research Associate at the Global Economic Governance Programme,
University of Oxford.