[A2k] Bridges Weekly: BREAKTHROUGH ON WIPO DEVELOPMENT AGENDA

[Thiru Balasubramaniam]

http://www.ictsd.org/weekly/07-02-28/story1.htm

Volume 11 	Number 7 	28 February 2007


BREAKTHROUGH ON WIPO DEVELOPMENT AGENDA

Delegates from 105 governments have made a breakthrough in negotiations
on integrating development concerns into the functioning of the World
Intellectual Property Organisation, by agreeing on a set of initial
recommendations for reforms.

Both government officials and civil society groups praised the deal,
which was reached after a week of discussions in the WIPO committee
responsible for the 'development agenda' talks. The recommendations
touch upon a wide range of WIPO's activities, from rule-making to
technical assistance and the protection of the public domain.

During the 19-23 February meeting of the Provisional Committee on
Proposals related to a WIPO Development Agenda (PCDA), negotiators
focused on 40 proposals for integrating developmental considerations
into WIPO's mandate and functioning. These were drawn from a total of
111 proposals that have been made since October 2004, when a group of
developing countries led by Brazil and Argentina first called for a
'development agenda' for the organisation (see BRIDGES Weekly, 6
October 2004).

After five days of discussions, the PCDA was able to refine the 40
proposals it was considering into a list of 24 recommendations for
action. They will be submitted to the September session of the General
Assembly, WIPO's senior decision-making body.

As per an earlier decision by WIPO member states, the PCDA will address
the remaining 71 proposals at its next meeting in June (see BRIDGES
Weekly, 4 October 2006).

Members work out differences on proposals

During the recent meeting, delegates bassed their discussions on a
document (PCDA/3/2) prepared by former General Assembly Chair
Ambassador Enrique Manalo (Philippines), in which he organised the 111
proposals into six issue-based clusters in an attempt to facilitate
negotiations.

PCDA Chair Ambassador Trevor Clarke (Barbados) assigned five of the six
clusters to the coordinators of WIPO's different member groupings,
retaining control of the sixth himself.

Cluster A, which dealt with proposals on technical assistance and
capacity building, was assigned to Algeria, coordinator of the African
Group. Discussions on Cluster B, which addressed issues including
norm-setting, flexibilities (exceptions), public policy and the public
domain, were led by the Kyrgyz Republic. Cluster C, which covered
technology transfer and information and communication technology, and
access to knowledge, was handed to Asian Group chairs Bangladesh and
China. Cluster D, dealing with assessment, evaluation and impact
studies, was guided by Poland, which chairs the group of Central
European and Baltic States. Talks on Cluster E proposals, which focused
on institutional matters including WIPO's mandate and governance, were
the responsibility of Italy, chair of the so-called 'group B' that
includes most developed countries. Cluster F, which Clarke himself led,
dealt with a single proposal on enforcement.

Each coordinator was charged with holding intensive consultations to
refine the proposals in their respective cluster, to bridge differences
and remove any overlaps so as to arrive at concrete recommendations.
They did this in a number of ways. For instance, some proposals were
rephrased to make them less specific and thus easier to accept; others
were deferred to the June meeting of the PCDA. Sources report that the
talks on the texts in each cluster were marked by intense negotiations
among the different regional groups.

Many government and civil society representatives commended Clarke's
handling of the meeting.

Approved proposals cover range of development issues

In this way, members whittled down the 40 proposals into 24
recommendations upon which they were able to agree. As per the issue
clusters, these included several for WIPO technical assistance: one
said that such efforts should be "development-oriented, demand-driven,
and transparent"; another called for voluntary "trust funds" to be
established to fund support to least-developed countries.

The agreed proposals on norm-setting stressed that WIPO rule-making
should "be inclusive and member driven; take into account different
levels of development; [and] take into consideration a balance between
costs and benefits." The emphasis on 'participatory' norm-setting
extended beyond WIPO member states to include accredited
non-governmental organisations. Furthermore, the provisional agreement
reached by the PCDA said that rule-making processes in the organisation
should take into account the "preservation of the public domain." It
also underlined that the WIPO Secretariat should act in accordance with
the "principle of neutrality"; several developing countries have
accused it of failing to do so in the past.

Members approved proposals asking WIPO to expand the scope of its
activities aimed at bridging the digital divide, to promote technology
transfer, and to "take appropriate measures" to help developing
countries take advantage of the various flexibilities that exist in
international agreements. They also called for a yearly review of all
of the organisation's development-oriented activities.

Notably, members agreed on a proposal that called for WIPO "to approach
intellectual property enforcement in the context of broader societal
interests and especially development-oriented concerns," in accordance
with the stipulation in WTO rules that "the protection and enforcement
of intellectual property rights should contribute to the promotion of
technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of
technological knowledge and in a manner conducive to social and
economic welfare." Critics of the intellectual property system as it
currently functions argue that the delicate balance between producers'
private gains and the broader public interest has tipped too far in the
direction of the former.

Coming after two-and-a-half years of generally contentious discussions,
one Nigerian delegate likened the preliminary accord to coming "out of
the tunnel into the brilliant prospects of implementing the development
agenda in WIPO." An Indian negotiator said that the "very significant
forward movement" augured well for future deliberations on the
development agenda.

Discussions not free of controversy

Despite the ground-breaking agreement, talks inside the cluster groups
were not free of controversy.

For instance, the LDC trust fund gave rise to questions about the
potential duplication of financial support. Countries concerned about
who would be expected to contribute to it had to be assured that
donations would be voluntary, not mandatory. The developed countries in
Group B initially suggested that helping developing countries identify
flexibilities already present in intellectual property should not be a
matter of course, but rather left to specific requests for such
assistance. Brazil and China disagreed with the US over where to
address intellectual property-related anti-competitive practices, with
the US arguing that other organisations were already working on the
issue.

In response to Brazil's suggestions on ensuring technology transfer,
some Group B countries expressed scepticism about whether states could
guarantee technology flows to developing country firms. Two developing
country delegations argued that it was possible, pointing to a recent
report by John Barton, former chair of the UK Commission on
Intellectual Property Rights, that describes measures for making
technology transfer effective.

Discussions on the protection of the public domain were perhaps the
most controversial issue last week. According to the chair's summary of
the talks, Colombia expressed formal reservations about the issue's
inclusion in the agreed text. It reportedly contended that intellectual
property does not affect the public domain, since IP only creates
incentives for new inventions and creations. Therefore, it argued that
the public domain did not need "protection" in the traditional
intellectual property sense of the term. Chile countered that a strong
public domain would in a fact be a base for generating innovation and
creativity that could in turn produce new intellectual property assets.
Uruguay pointed to the importance of the public domain in fulfilling
the rights to education and freedom of expression, as well as its role
in balancing intellectual property with the rights to participate in
culture and benefit from scientific progress.

Some civil society observers noted that the entry into the public
domain of many works had been postponed by repeated increases in the
duration of copyright protection, from 50 to 70 or more years beyond
the life of the author. They speculated that this could be behind
opposition to specific protections for the public domain, especially by
copyright offices and some film and music industry groups. Many NGOs,
including several library organisations, stressed the importance of
preserving works in the public domain.

Focus turns to June meeting and tougher proposals

Attention now turns to the PCDA's June meeting. That session will look
at the remaining 71 development agenda proposals, which had been more
divisive than the 40 that have now been resolved.

According to civil society group Knowledge Ecology International, these
proposals are "much more ambitious," since some of them focus on access
to knowledge, in contrast to WIPO's traditionally narrow focus on
intellectual property rights. They anticipate that the June PCDA
session will be much tougher than the one last week.

Recommendations that come out of the June gathering will be sent to the
General Assembly along with the 24 proposals that have now been agreed.

Documents from the meeting can be found at
http://www.wipo.int/edocs/prdocs/en/2007/wipo_pr_2007_478.html.

ICTSD reporting; "Member states make significant headway in work on a
WIPO development agenda," WIPO PRESS RELEASE, 26 February 2007; "WIPO
Committee approves proposals for development agenda," INTELLECTUAL
PROPERTY WATCH, 23 February 2007; "Text-based negotiations on a WIPO
development agenda pick up pace," INTELLECTUAL PROPERTY WATCH, 22
February 2007; "WIPO members move closer to narrowed text on
development," INTELLECTUAL PROPERTY WATCH, 22 February 2007; "Study
Highlights Needed Improvements for IP and Technology Transfer",
INTELLECTUAL PROPERTY WATCH, 22 February 2007.

---------------------------------
Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org