[A2k] Meeting agrees to 45 proposals and new Development Committee

[Sangeeta]

Please find below the final analysis on the overall outcome of the WIPO
Development Agenda meeting held last week in WIPO and reproduced here with
permission.

Sangeeta Shashikant
Third World Network
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Meeting agrees to 45 proposals and new Development Committee

SUNS #6274 Tuesday 19 June 2007

Geneva, 18 June (Sangeeta Shashikant) -- A meeting of the WIPO Development
Agenda ended on 15 June with a decision to set up a new WIPO Committee on
"Development and IP", and to transmit 45 agreed proposals to the WIPO
General Assembly for adoption.

The new Committee is the centerpiece of the follow-up process in the next
phase of the Development Agenda initiative, which will involve
implementation of the proposals, and monitoring and assessing of the
implementation. The Committee is also mandated to discuss IP and
development-related issues.

The decision, which will have to be adopted by the WIPO General Assembly
later this year, was taken after an intense week of negotiations in the
fourth session of the Provisional Committee on Proposals Related to a WIPO
Development Agenda (PCDA).

The decision marks the close of the first phase of the Development Agenda
initiative spearheaded by the Group of Friends of Development (coordinated
by Argentina and Brazil) and supported by many other countries.

The initiative began in September 2004 and was met initially with hostility
by developed countries in general, and meetings of the Development Agenda
have been heated and tense.

However, as it became clear that the developing countries were determined to
pursue their intention to reform WIPO to make its norms and activities more
development-oriented in line with its functions as a United Nations agency,
the developed countries in the end engaged in the negotiations on the
proposals.

There were in all 111 proposals put forward. Eventually, these were narrowed
down to the 45 proposals that the PCDA will recommend to the General
Assembly for adoption. Of the 45 agreed proposals, 21 were decided on during
last week's negotiations, while 24 had been adopted at the previous PCDA
meeting in February.

Last week's meeting comprised mainly of negotiations carried out in a small
informal group of about 30 members, which represented mainly regional
groupings, while the majority of members were left waiting for the outcome.

The small-group meeting was termed by many as the "Green Room", in reference
to the WTO's controversial practice in which only a few members are called
for meetings where key decisions are taken, and other members are then
persuaded to "join in the consensus."

The small-group meeting was described by some delegates who participated as
being "difficult" although not as acrimonious as expected.

The 45 proposals capture many of the ideas contained in the 111 original
proposals. As part of the compromise, developing countries had to accept the
dilution of many of their proposals on the insistence of developed
countries, as well as the deletion altogether of some of the most important
proposals.

But generally, diplomats of many developing countries were pleased with the
outcome, as there is still quite a lot of substance in the agreed proposals
on which to base a reform programme oriented to development objectives. They
also believe that in the implementation process, specifics can be put into
proposals that are presently worded in a more general way.

On 15 June night, at the final formal plenary session, the PCDA decided to
make the following recommendations to the 2007 WIPO General Assembly:

-- To adopt the recommendations for action in the 45 agreed proposals.

-- To immediately implement the recommendations contained in a list to be
submitted by the Chair of the PCDA. [This refers to an understanding that
the Chair, Ambassador Trevor Clarke of Barbados, will consult members
between June and September to identify proposals which can be implemented
immediately by WIPO after the General Assembly.]

-- To immediately establish a Committee on Development and IP to: (a)
develop a work-program for implementation of the adopted recommendations;
(b) monitor, assess, discuss and report on the implementation of all
recommendations adopted, and for that purpose it shall coordinate with
relevant WIPO bodies; ( c) discuss IP and development-related issues as
agreed by the Committee, as well as those decided by the General Assembly.

The Committee will be composed of WIPO Member States and open to the
participation of all accredited intergovernmental and non-governmental
organizations. It will consider and adopt rules of procedure based on the
WIPO General Rules of Procedure at its first meeting, which will be convened
in the first half of 2008. The number and duration of meetings of the
Committee are to be decided by the General Assembly.

The PCDA also recommended that for the first meeting of the new Committee,
the present Chair of the PCDA would prepare initial working documents,
including a draft work program in consultation with Member States and the
Secretariat. The draft work program should address, inter alia, the
financial and human resources requirements for inclusion in WIPO's budgetary
planning process.

The Committee will report and may make recommendations annually to the
General Assembly. The mandate of the PCDA will not be renewed and the PCIPD
(Permanent Committee on Cooperation for Development Related to Intellectual
Property) shall cease to exist.

The 45 agreed proposals are categorized in 6 clusters: Cluster A is on
Technical Assistance and Capacity Building; Cluster B on norm setting,
flexibilities, public policy and public domain; Cluster C on Technology
transfer, information and communication technology and access to knowledge;
Cluster D on Assessments, Evaluation and Impact Studies; Cluster E on
Institutional matters including mandate and governance; and Cluster F on
Other Issues.

On 11-13 June, the informal small group finalized proposals for Cluster A
and B (See reports on these in SUNS #6270 dated 13 June 2007, and SUNS #6272
dated 15 June 2007). Proposals in the remaining clusters were finalized on
14-15 June.

The agreed proposals on Cluster C (Technology transfer) are:

-- To include discussions on IP-related technology transfer issues within
the mandate of an appropriate WIPO body.

-- WIPO should cooperate with other intergovernmental organizations to
provide to developing countries, including LDCs, upon request, advice on how
to gain access to and make use of IP-related information on technology,
particularly in areas of special interest to the requesting parties.

-- To undertake initiatives agreed by Member States which contribute to
transfer of technology to developing countries, such as requesting WIPO to
facilitate better access to publicly available patent information.

-- To have within WIPO opportunity for exchange of national and regional
experiences and information on the links between IP rights and competition
policies.

Originally, there had been 14 proposals in this Cluster in a list termed
"Annex B". These had already been reduced to five proposals by the Asian
Group that coordinated the work on this Cluster, and eventually this was
further reduced to the above four proposals.

During the negotiations, the African Group insisted on incorporating a
proposal requiring the development of a list of essential technologies that
are necessary to meet development needs as a method of operationalising
technology transfer effectively. However, Group B (comprising developd
countries) did not accept this proposal.

As a compromise, it was agreed that WIPO should cooperate with other
organizations to advise developing countries on how to gain access to and
make use of "IP-related information on technology."

Specific original proposals of the Group of Friends of Development and the
Africa Group contained in Annex B do not feature at all in the list of
agreed proposals, but they could re-emerge in the new Committee during
discussion on implementation.

These include proposals to adopt development-friendly principles and
guidelines on transfer of technology; specific measures to ensure transfer
of technology; to devise a mechanism whereby countries affected by
anti-competitive practices request developed countries' authorities to
undertake enforcement actions against firms headquarted in their
jurisdictions; to establish a WIPO Standing Committee on IP and Technology
and a dedicated program on these issues including related competition
policies; and to negotiate a multilateral agreement where signatories would
place into public domain, or find other means of sharing at modest cost, the
results of largely public funded research.

On Cluster D (Assessments, Evaluation, Impact Studies), the following three
proposals were agreed on:

-- To exchange experiences on open collaborative projects such as the Human
Genome Project as well as on IP models.

-- Upon request and as directed by Member States, WIPO may conduct studies
on the protection of intellectual property, to identify the possible links
and impacts between IP and development.

-- To strengthen WIPO's capacity to perform objective assessments of the
impact of the organization's activities on development.

On the first proposal, Group B (in particular, the US) had long argued that
WIPO, being an organization only to promote IP, should not be asked to look
at open collaborative models.

In July 2003, WIPO was asked by several dozen distinguished scientists,
academics, technologists, open-source advocates, consumer advocates,
librarians, industry representatives and economists worldwide to hold a
meeting to study the importance and implications of new open collaborative
projects to create public goods. Microsoft and the US Government opposed the
meeting, which was never held.

Lois Boland, director of international relations for the US Patent and
Trademark Office, said at that time that open-source software runs counter
to the mission of WIPO, which is to promote intellectual-property rights.
According to her: "To hold a meeting which has as its purpose to disclaim or
waive such rights seems to be contrary to the goals of WIPO."

Thus, the agreement on this proposal can be seen as opening new ground, as
for the first time, WIPO Members have acknowledged a discussion on "open
collaborative models" to be part of WIPO's mandate.

On the third proposal, Group B refused during the meeting to accept any
mention of specifics.

Among the original proposals of the Group of Friends of Development
contained in Annex B were "to establish an independent development impact
assessments with respect to technical assistance, technology transfer and
norm setting" and "to establish, through a member-driven process, an
independent Evaluation and Research Office (WERO) that would be responsible
for, inter alia, evaluation of all WIPO's programs and activities and
carrying out Development Impact Assessments' in norm setting activities and
technical cooperation". These specific proposals were not accepted.

However, the third proposal, although couched in general terms, recognizes
the need to perform "objective" assessments of the impact of the
organization's activities (which would include technical assistance,
technology transfer and norm setting) on development and it leaves avenue
open for specific proposals during the follow-up discussion on
"implementation".

In relation to Cluster E (Institutional matters), the following proposals
were agreed on:

-- To consider how to improve WIPO's role in finding partners to fund and
execute projects for IP-related assistance in a transparent and
member-driven process and without prejudice to ongoing WIP0 activities.

-- In accordance with WIPO's member-driven nature as a United Nations
Specialized Agency, formal and informal meetings or consultations relating
to norm-setting activities in WIPO, organized by the International Bureau,
upon request of the Member States, should be held primarily in Geneva, in a
manner open and transparent to all Members. Where such meetings are to take
place outside of Geneva, Member States shall be informed through official
channels, well in advance, and consulted on the draft agenda and program.

These agreed proposals are only a pale shadow of the much more ambitious set
of proposals put forward by the Group of Friends of Development and
contained in Annex B. The original proposals included amending the WIPO
Convention to bring it in line with WIPO's mandate as a UN specialized
agency and to adopt a high level Declaration on IP and Development. These
were deleted during the negotiations.

The original proposal on amending the WIPO Convention had been considered
very important in view of the stance often taken by Group B that WIPO's
mandate is confined to the promotion of IPRs and setting IP standards. It
was because of this stance that Group B had initially resisted the
Development Agenda initiative.

The Group of Friends of Development had wanted an amendment to the WIPO
Convention so that development goals would be put more explicitly in WIPO's
mandate, in line with other UN agencies.

Although the original proposal has not been accepted, some observers argue
that the past two years of discussions on the WIPO Development Agenda and
the 45 proposals recommended for adoption by the PCDA meeting has
significantly enlarged WIPO's mandate beyond just promoting and setting
standards on IP.

During the course of the week's negotiations, several proposals of Group B
were also dropped. The developed countries had proposed the compilation of
"best practices" of Member States on the development of creative industries
and attracting foreign investment and technologies.

This proposal was withdrawn, as countries questioned which standard would be
considered "best practices", as countries are at different levels of
development and "one size would not fit" all countries.

Another Group B proposal that was dropped was "increasing the understanding
of the adverse effect of counterfeiting and piracy on economic development,
through the WIPO Advisory Committee on Enforcement (ACE), conduct analyses
of the relationship between high rates of counterfeiting and intellectual
property, piracy and technology transfer, foreign direct investment and
economic growth". This was deleted after the African Group sought to include
"bio-piracy" as part of this proposal.

A draft report of this PCDA meeting will be sent to Member States by 16 July
and a resumed session of the PCDA will take place on 4 September to adopt
the report. +

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