[A2k] WIPO chief's agenda raises development concerns

[Sangeeta]

WIPO chief's agenda raises development concerns
SUNS #6778 Thursday 24 September 2009


Geneva, 23 Sep (Sangeeta Shashikant) -- The Director-General of the World
Intellectual Property Organization (WIPO), Francis Gurry, on Tuesday
presented his vision for the organization, which includes further
norm-setting in the area of copyright to accommodate the concerns of
right-holders in the digital age and the adoption of his controversial
proposed Patent Cooperation Treaty (PCT) road map which would move in the
direction of removing many of the checks and balances needed for
development.

The WIPO chief laid out his vision in his opening statement at the
forty-seventh session of the WIPO Assemblies, which is meeting from 22
September to 1 October to review the organization's status of activities and
discuss future work.

On both the issues of norm-setting in the area of copyright and the proposed
road map for the PCT, the vision is underlined by the view that otherwise
WIPO may become irrelevant as a result of on-going bilateral and
plurilateral initiatives.

The vision also includes renewing the mandate of the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC), and on terms that will provide grounds for the
developing countries to believe that tangible solutions at the international
level to deal with misappropriation of genetic resources, traditional
knowledge and folklore are close.

Gurry also stressed, albeit without much elaboration, on the need for
"ambitious" projects pertaining to the Development Agenda and on the need
"to agree upon a coordination mechanism that establishes a seamless
relationship between approval of projects, budgeting and monitoring".

National innovation and intellectual property (IP) strategies were also
highlighted by Gurry as the main basis for WIPO to deliver technical
assistance to countries.

In a context where developed countries are the main holders of intellectual
property rights (e.g. patents), and thus exporters of IP, and developing
countries are mainly importers of IP and the main victims of "access",
several of Gurry's priorities raise concerns from a development perspective
and may result in controversy.

On norm-setting, Gurry noted that the "normative agenda...is not
progressing". He said that "the rate of progress in norm-making is in
inverse proportion to the rate of technological change". This, in his view,
"poses several major risks" for WIPO. He added that WIPO will "lose its role
in economic rule-making", and "multilateralism will suffer and recourse to
bilateral and plurilateral solutions may become more frequent."

Gurry said that "Global use of technologies calls for global normative
architecture".

The Director-General then linked making rules for the latest advances in
technology with rules on traditional knowledge (TK), adding that WIPO "must
be able to deal with all".

On the issue of TK, Gurry appealed for a show of  "flexibility and
understanding that is necessary to renew the mandate of this Committee on
terms that will provide grounds for the developing countries, in particular,
to believe that tangible solutions at the international level to the unfair
misappropriation of traditional knowledge and traditional cultural
expressions are close".

The issue of TK is expected to be one of the most controversial issues to be
discussed at the Assemblies, as Members have to take a decision on renewing
the mandate of the Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore that was established
by the WIPO General Assembly in October 2000.

The Intergovernmental Committee (IGC) presently has the mandate to focus on
the "international dimension" and "no outcome of its work is excluded
including the possible development of an international instrument or
instruments". However, in the last nine years, nothing substantive has
emerged from the IGC as a result of resistance from the developed countries,
in particular, the US, Japan, the EU and Australia.

At the last session of the IGC in July 2009, the African Group submitted a
proposal (supported by most other developing countries) for the renewal of
the IGC's mandate, with calls for text-based negotiations, the establishment
of a defined work programme, time-frames including for inter-sessional work
sessions, and a diplomatic conference to expedite work on the development
and adoption of an international legally-binding instrument for genetic
resources, traditional knowledge and folklore.

However, no agreement  was reached on the IGC's mandate since developed
countries were opposed  to any text-based negotiations or an international
legally-binding instrument on the matter.

According to some African delegates, these differences persist and will
emerge as the agenda item is discussed during the Assemblies.

The second normative area that Gurry focussed on was copyright in the
digital environment. He said: "We are witnessing the migration of most, if
not all, forms of cultural expression to digital technology and the Internet
- music, film, news content, literature and broadcasts of cultural and
sporting events". He added that "they do signal a challenge for the
institution of copyright".

Gurry further said that "The evidence suggests that the current means are
suffering severe stress", and that "according to industry estimations, 40
billion files of music were illegally file-shared on the Internet in 2008, a
piracy rate of 95%".

"I am not too sure that the impact of these tumultuous developments in
digital technology can be dealt with by way of negotiation of individual
issues in one of our Standing Committees. These developments are too
fundamental. They concern a question of major importance to the whole world,
which it is not an exaggeration to characterize as the financing of culture
in the 21st century," he added, suggesting "the possibility of some form of
global consultation and reflection on this question".

Gurry's intervention on norm-setting in the copyright area appears to want
to import contentious ongoing discussion, in and among developed countries,
pertaining to copyright protection in the digital age that favours specific
copyright holders in developed countries.

The intervention also reveals a bias towards norm-setting in the interest of
right-holders based on data produced by the right-holders. No mention is
made of possible norm-setting in the area of exceptions and limitations to
copyright that would benefit users/consumers and the general public,
although the issue of norm-setting in the area of exceptions and limitations
has dominated the agenda of the Standing Committee on Copyright and Related
Rights in its past two meetings. There is also a treaty proposal on access
to published works on the part of the visually impaired supported by a group
of developing countries.

Gurry also stressed the Patent Cooperation Treaty (PCT) Road Map as a
project of "great significance". He emphasized that it was not a
"norm-making exercise" since the PCT and the Road Map is about "improving
the functioning of a procedural treaty that links together the patent
offices of the world", adding that "it is about finding ways to increase
work-sharing, to decrease unnecessary inefficiencies, to improve the quality
of output of the international patent system and thereby contribute to the
management of the unsustainable backlog of 4.2 million unprocessed patent
applications in the world."

The PCT Road Map was presented by the Secretariat at the May session of the
PCT Working Group and contained actions to be taken to reform the PCT
system. The PCT system allows an applicant to seek patent protection for an
invention simultaneously in many countries by filing an "international"
patent application.

However, at the May session, several developing countries raised concerns
that the Secretariat's Road Map moved in the direction of removing many of
the checks and balances needed for development. The Road Map proposed inter
alia the removal of reservations to PCT Articles and Rules made by members
in exercise of their rights under the PCT; and promotes greater coordination
in such a manner that the work of a few patent offices designated as
International Searching Authorities (ISA) determines the outcomes of the
national examination substantially by raising a presumption of validity of
patent applications examined by the ISAs.

As a result of these concerns, the May session did not approve the Road Map
and sought more time to study the need for, and content of, such reform. It
also highlighted the need for the 45 Development Agenda (DA) Recommendations
to be considered in any move towards PCT reform.

The PCT Road Map is seen by many as Gurry's "pet project", thus the strong
push by the Secretariat for the adoption of the road map.

In his report to the Assemblies, Gurry also mentioned "counterfeit" and
explained that it meant "fake and deceptive". This is in total disregard of
the fact that counterfeit is defined in the TRIPS Agreement and in the
national laws of many countries as pertaining to trademark infringement. He
added that he saw WIPO moving "gradually" to a dialogue on "ways and means
of dealing in a practical way with the misuse of intellectual property to
sell fake products".

In relation to climate change, the Director-General said that "There is a
perception that intellectual property may be a negative influence in the
range of policy initiatives that are needed to deal with climate change",
but that he "did not believe that this perception corresponds to reality".
He further added that "it is difficult to imagine how a property right on an
individual piece of technology could constitute an obstacle".

He however acknowledged that "Transfer of technology is thus fundamental to
effective action. The policy challenge of shepherding, through a public
process, the transfer of such an extensive range of technology held in
private hands, is daunting and frankly has never been achieved before".

There is clear evidence of an upward trend in the patenting of
climate-related technologies since the mid-1990s and entities of
industrialized countries hold most of the technology. This raises
fundamental questions as to whether developing countries will be hampered in
their ability to gain, on reasonable terms, timely access to latest
mitigation and adaptation technologies as well as the associated know-how.
IP has been identified as being one of the barriers to accessing
climate-friendly technologies by developing countries (the Group of 77 and
China), who have submitted proposals within the context of the climate
negotiations to overcome the IP barrier.

With regard to the Development Agenda, Gurry said, without much elaboration,
that it was time to "transform that idea into an operational reality",
stressing the need to be more "ambitious" and "to identify and execute
projects that make a difference and that are not just a continuation of
standard technical assistance under another guise".

He further stressed on the "need to agree upon a coordination mechanism that
establishes a seamless relationship between approval of projects, budgeting
and monitoring".

The issue of a coordination mechanism was particularly contentious at the
last meeting of the Committee on Development and IP held from 27 April to 1
May 2009, as Group B (composed of developed countries) was not agreeable to
consider any such mechanism.

However, it is anticipated that several developing-country delegations will
stress the importance of deciding on coordination mechanisms as well as
modalities for monitoring, assessing and reporting on the implementation of
recommendations at this Assemblies during the agenda item on the Development
Agenda.
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