[A2k] SUNS: Different views as WIPO strives to implement Development Agenda

[Sangeeta]

Different views as WIPO strives to implement Development Agenda
Published in SUNS #6518 dated 16 July 2008

Geneva, 15 July (Riaz K Tayob and K M Gopakumar) -- The implementation of
the adopted recommendations on the WIPO Development Agenda was discussed
last week at the second session of the WIPO Committee on Development and
Intellectual Property (CDIP).

Of the total of 45 adopted recommendations, the meeting discussed proposed
activities linked to 15 of them.

In the first part of this article (published in SUNS #6517 dated 15 July
2008), the discussion on some of the 15 recommendations was reported on. The
following is a report on some of the remaining recommendations.

On recommendation 8 (develop agreements with institutions for access to
patent search databases), the WIPO Secretariat proposed to conduct a study
and implement strategies to enhance their access and use including through a
pilot initiative, training and establish IP Advisory Service and Information
Centres in developing countries. In an informal paper, it presented terms of
reference that includes conduct of a needs assessment, which lists possible
issues and preparation of recommendations.

For recommendation 9, a database to match states' needs with available
resources, the Secretariat proposed to establish an "effective diagnostic
tool" for assessing the IP-related development needs of countries. It also
proposed other mechanisms for regular collection of information on potential
donors as well as their available funds and expertise for WIPO to match with
specific IP development needs.

The US questioned the use of the term "effective diagnostic tool." It said
that more precision was needed as nowhere was there reference to such a
tool. It wanted to know how it related to the recommendation. It understood
the diagnosis to be a self-identification process with a "relatively neutral
market place" mechanism that matched the needs with the donor.

Brazil enquired and the Secretariat affirmed that a state can request
technical assistance, asking WIPO to assist with the diagnosis. South Africa
said that it may be difficult for developing countries to see what
practically needs to be done, and WIPO can assist them.

Spain observed that there is an overlap of proposed activities which should
be clarified in light of budget implications. Secretariat representatives
said that the risk of overlap looms large and that development is holistic
and this risk is always there. It clarified that effort is made to avoid
overlapping. At the behest of the Chair, it was agreed that the term
"effective interactive process" be used instead of diagnostic process to
match needs and available resources.

Recommendation 10 is to improve IP institutional capacity and infrastructure
and this includes through training in corporate governance, streamlining
administration and the use of software.

The programs include policy development, development of national IP
strategies, legal assistance to developing countries and LDCs, developing
capacity for management of IP and public policy objectives, strengthening
support for Small, Medium Enterprises, and strengthening and modernization
of IP institutions. Under the latter, some of the expected outcomes seem to
reflect issues that provoked extensive discussion at the Standing Committee
on Patents, namely, improved efficiency, shorter processing time and
reduction of backlogs.

China and Tunisia expressed concern about the financial allocation to
institutional capacity for the development of infrastructure and other
facilities. Brazil was also concerned that the figures provided were "on the
conservative side."

Some developed countries raised concerns about the use of WIPO resources on
the Development Agenda. To this, Tunisia pointed out that this is the CDIP
and not the Programme and Budget Committee (PBC). Our only concern really is
to look at programmes and what is needed to implement them, taking into
account the costs. This will be sent to the PBC which will separately
evaluate it.

Recommendation 20 seeks "to promote norm-setting activities related to IP
that support a robust public domain in WIPO's Member States, including the
possibility of preparing guidelines which could assist interested Member
States in identifying subject matters that have fallen into the public
domain within their respective jurisdictions."

The secretariat briefed the committee on various activities undertaken in
four areas: trademark, copyright, patent and traditional knowledge and
genetic resources. It explained that activities concern information. Patents
and information are two sides of the same coin. Activities seek to
disseminate patent information concerning the scope of protection, duration
of protection of specific technology, and geographic coverage. Access to and
use of the public domain was read as whatever is available and accessible.

The Secretariat stated that the public domain debate under copyright law
traditionally focused on the availability of works not protected under
copyright. The new approach is to ensure access to copyright work, which is
very important for access to knowledge. According to the Secretariat, the
activities are to promote deeper understanding of problems in the field of
copyright to identify public domain material. It also proposed the
development of a database containing a repertoire of public domain
materials.

Developed countries, especially the US and France, opposed the proposal of
development of database, which they said involves enormous tasks and
therefore it should not proceed without having proper understanding on the
tasks involved.

The Chair proposed the replacement of the word "development of database"
with "study the issue". Brazil observed that the public domain is important
o promote access to knowledge and the objective of the database is promote
access particularly in the digital society. Brazil advocated for "more than
a study" as a study could simply sidetrack an interesting idea.

France remarked that mention of the Standing Committee on Patents (SCP)
under proposed activities here in the IWD (initial working document) is an
"interference" in the workings of other committees. Switzerland also
questioned it. Brazil responded that development is an overarching issue and
should be reflected in the work of other committees. Such reference is not
interference but only an effort to link the committee's work with
development.

Chile stated that enriching the public domain is the way forward to making
the social contract more effective, adding that the objective of this
recommendation is to promote normative activities supporting a strong public
domain and this should not be lost sight of. It understood the activities to
include the preparation of guidelines for the preservation of the public
domain.

At Brazil's submission, the proposed activity on the "introduction of
worldwide definition of prior art that would prevent encroachments on the
public domain" was deleted. Brazil had said that wording pushes us into the
issue of patent harmonisation, which is a very controversial issue, to say
the least.

On recommendation 22 in the PWD, WIPO's norm-setting activities should be
supportive of the development goals agreed within the UN system, including
those contained in the Millennium Declaration.

The WIPO Secretariat, without prejudice to the outcome of Member States'
considerations, should address in its working documents for norm-setting
activities, as appropriate and as directed by Member States, issues such as:
(a) safeguarding national implementation of intellectual property rules; (b)
links between IP and competition; ( c) IP-related transfer of technology;
(d) potential flexibilities, exceptions and limitations for Member States;
and (e) the possibility of additional special provisions for developing
countries and LDCs.

The mechanisms proposed by members of the Friends of Development (FOD)
ranged widely during the discussion in an attempt to secure consensus. They
included proposing that the CDIP Chair send other WIPO bodies a letter
informing them of the adoption of the Development Agenda, and on the other
hand, requesting the Secretariat to inform the CDIP on the implementation of
the agenda in other bodies.

The Chair's Summary now urges the General Assembly to encourage WIPO bodies
to effectively implement the Agenda. The relationship of the CDIP with WIPO
and its bodies will also be discussed at the next CDIP for reporting to the
following General Assembly.

Argentina, for the FOD, said that recommendations 15, 16, 19 and 21 were
also relevant here. It asked the Secretariat to report on implementation,
particularly of these recommendations to each CDIP meeting. It proposed that
letters be sent to the Chairs of all the other WIPO bodies containing this
recommendation and to incorporate it in its rules of procedure.

The US said that the CDIP was finding its voice and this year we operate
under the mandate of the General Assembly to coordinate work with other
committees, bearing in mind that we had extensive discussions of this
relationship at the first meeting. It found it troublesome that this
committee would intrude itself in the rules of procedure of other committees
and found it unacceptable.

Responding to this, several developing countries expressed a strong
preference in favour of some relationship and could not accept the US
position.

South Africa said that this recommendation was very important. It attempts
to bring some form of balance to the IPR system by preserving the
flexibilities that exist in TRIPS or created recommendations that recognize
that countries are at different stages of development. The recommendation is
a result of proposals submitted from the Africa Group and the FOD informed
by the treaty-making processes.

In these processes, we found it difficult to propose some of the issues
related to development, South Africa said. In the copyright committee
(SCCR), for instance, the issues we brought forward were sidelined into a
non-paper and it took too long to integrate the non-paper to form part of
the treaty.

Another example was the difficulty at the Singapore Conference on Trademarks
where these (development) issues were not acceptable. Benefit for all
countries is important for the legitimacy of agreements in the multilateral
system. It did not feel that the CDIP's work was intruding on the work of
the other committees as states have the right to propose whatever they want
to propose.

The issues here are not mandatorily to be integrated into treaty making. It
does not help to conclude treaties that are not really relevant for
developing countries as treaties should be balanced and take into account
the different levels of development of all its parties, South Africa added.

Discussions followed on recommendation 22, "WIPO's norm setting activities
should be supportive of the development goals agreed within the UN system,
including those contained in the Millennium Declaration."

The WIPO Secretariat, without prejudice to the outcome of Member States'
considerations, should address in its working documents for norm-setting
activities, as appropriate and as directed by Member States, issues such as:
(a) safeguarding national implementation of intellectual property rules; (b)
links between IP and competition; ( c) IP-related transfer of technology;
(d) potential flexibilities, exceptions and limitations for Member States;
and (e) the possibility of additional special provisions for developing
countries and LDCs.

Brazil said that recommendation 22 was perhaps the most important of the
development agenda to bring IP into the mainstream of the UN system. There
is conceptual linkage between the UN development goals and the Development
Agenda and is important for both developed and developing countries. CDIP
must not aspire to monopolise the debate because it is cross-cutting and
transversal, it said.

On norm-setting activities, everyone should follow and adhere to the
principles that we have consecrated. These principles are important not only
because they have an interface with development, they are part of the IP
agenda. Limitations and exceptions, for instance, are part of the
discussions in IP itself. Member states have to find a way to give concrete
expression (to the principles) in norm-setting, Brazil said.

Algeria emphasised the importance of this recommendation and said that it
gave a clear idea of the essence and objectives of development and to
mainstream the development activities of WIPO. These recommendations concern
all the activities of WIPO. In suggesting that the General Assembly take
them into account, we would not be surpassing our mandate.

It said that we are not giving it directly to any committee. We are
recommending to the General Assembly that the different divisions of WIPO
take their content into account. The Africa Group also supported requesting
a report on how WIPO was contributing to achieving the MDG in normal
activities on norm-setting.

Japan said that it cannot support the FOD proposal. Discussion on
norm-setting takes place in specialised committees. It understood that CDIP
is not in a position to give this to (other) committees.
Tunisia reiterated that the CDIP process is about implementation and not a
review or revision of the recommendations. They constitute balance that is
delicately found. Similar to a construction where all blocks are mutually
sustaining, removing or attaching one and the entire construct may collapse.
Mainstreaming development is a matter that needs the full involvement and
participation of all WIPO committees and working groups.

These organs might not be systematically aware of the recommendations and
the role they should play to ensure their implementation. We support the
recommendation to the General Assembly that WIPO bodies take more into
consideration the development aspect in deliberation and activities.
According to experience in another WIPO committee, the development dimension
seems not to be fully taken care of and a reminder from the General Assembly
might be useful.

Chile supported the FOD proposal and said that while CDIP did not have a
mandate to directly instruct other bodies what to do, it also supported
Tunisia to find the best way to reach them, i. e. a recommendation from the
CDIP to the General Assembly so that it, in turn, sends the instruction to
the relevant bodies at WIPO.

France, for the European Communities, said that it was not necessary to lose
sight of the mandate of the committee and states should respect the Terms of
Reference of the committee. We risk interference in the work of other
committees. It was important to continue discussion on this matter.

Cuba said that this recommendation was the essence of the Development
Agenda, to cover all the activities of WIPO. China supported the Africa
Group and Brazil. The issue was to make available policy space for
developing countries and development should be tackled seriously by WIPO
bodies. Developing countries lag behind developed countries and we have to
ensure that they have more margin for manoeuvre.

Jamaica supported Brazil and said that the CDIP does not intrude on the work
of others per se. Invariably, it touches their work but promotes coherence
in the development approach within the context of the UN development goals.
The primacy of development cannot be established without addressing other
bodies.

Pakistan said that all committees should be instructed to mainstream
development.

The US sought to "clear up some confusion" after these interventions. It
said that it believes that CDIP work is to implement the recommendation and
consider activities. If there is the impression that the US disagreed with
recommendation 22 or was revisiting it, it wanted to make it abundantly
clear that this was not the case. It supported colloquia on a few
precautions (which it would apply to other activities as well). The
colloquia should be based on recent, sound expert scholarship, be balanced
taking into account all viewpoints and must be public policy neutral,
confined to informing the policymaking process in WIPO to advance the
broader objectives of the CDIP.

The US then said that the way to enhance economic development was through
IP. The committee through discussion based on the persuasiveness of ideas,
should seek to reach agreement through concepts and thoughts. It should
produce a clear and rich record rather than exporting particular elements to
other WIPO bodies.

Russia said that to implement the recommendations successfully, we need to
act within the framework of existing rules.

The Chair said that Recommendation 22 had the support of members. First, it
is a foundation that cannot be moved. Second, we have looked at activities
and seen how it should be done. The proposed activities as outlined are
accepted. Third, the FOD has requested correspondence to other chairs. The
Chair said that he was neither persuaded that this was necessary nor
desirable. He was not sure that this was the right thing to do at this
stage.

However, what the FOD said can be included in the recommendation to the
General Assembly. We already have on the record that the 19 recommendations
(that can be immediately implemented) calls on members, the Secretariat and
other relevant WIPO bodies to ensure the immediate and effective
implementation of the recommendations, he said.

Brazil then clarified further its views on the recommendation and the
activities proposed by the Secretariat. They have merit but reflect the
recommendation in a very abstract manner. It supported the Africa Group
proposal for a WIPO MDG contribution report. Also, it proposed a global
forum on IP and development to really try to give concrete expression about
the idea of the cross-cutting nature of development.

Argentina, for the FOD, said that it was important to include assessments of
how the recommendations are being implemented at WIPO and that the CDIP
receives reports for its meetings. Tanzania said that the chances of
encroachment on other (committees' activities) is minimal as these
activities complement each other.

France, for the EC, said that it was willing to study the best way to
implement the proposal and that discussion later would be useful if the
proposal is reflected in a new version of the document.

The Chair said that what comes back to this committee will be updated with
resource implications and only then will the CDIP go to the stage of
agreement.

Discussions proceeded also on Recommendation 23, to consider how to better
promote pro-competitive IP licensing practices, particularly with a view to
fostering creativity, innovation and the transfer and dissemination of
technology to interested countries, in particular developing countries and
LDCs.

The Secretariat proposed a global meeting on emerging copyright issues
covering issues on open source software and creative commons licenses.

Responding to a query from Brazil as to whether these issues belonged to the
IP system, the Secretariat said they do. Creative commons is an example of
the exercise of rights on derivative works under the Berne Convention.

Indonesia proposed that activities cover IP and not just copyright. China
proposed activities on patent licensing in addition to those proposed.

France said that activities on franchises did not fall within the framework
of IP. The US said there are competing models to exploit licensing
arrangements. IP is a system of private rights. It reiterated its three
precautionary conditions on the activities. Botswana supported activities on
franchises. Pakistan emphasised the importance of Transfer of Technology. It
asked if the proposed technology transfer database included a list of
technologies available for licensing.

On competition, Nuno Pires de Carvalho from the Secretariat said that IPRs
are pro-competitive unless a bilateral or unilateral act transforms it into
an anti-competitive tool.

Chile said that competition in the recommendation pursued an objective that
is different from that presented by the Secretariat. The point is not to
find how IP when applied can be abused, but to find new forms of using IP
and how best to promote competition. It is not just about avoiding
anti-competitive (practices) but also about a different license granting
system.

Chile also responded to Carvalho that if, as according to his definition, IP
were pro-competitive, then there would be no need to go into this
recommendation. All we would have to do is increase the level of IP
protection, and there would be a more pro-competitive situation, and
everything would be okay, according to Carvalho's concept. Chile wanted a
focus on the spirit on the recommendation.

Carvalho said that this appeared to be talk about revising the
recommendation. He wanted to know if the recommendation was being expanded
to areas outside (of its scope). One can say the glass is half empty or half
full, should we narrow or broaden it to encompass other areas.

(* This is the second part of a two-part article on the WIPO meeting on the
Development Agenda last week. The first part was published in SUNS #6517
dated 15 July 2008.) +