[Ecommerce] Brazil, Argentina ask WIPO to establish "Development Agenda"
James Love
james.love@cptech.org
Thu Sep 2 10:11:13 2004
On Friday, August 27, Argentina and Brazil presented to WIPO a "Proposal
for Establishing a Development Agenda for the World Intellectual
Property Organization." The proposal, attached below, will likely begin
an important new debate on the WIPO mission and work plan. It not only
calls for amending the treaty that established WIPO, but it sets out a
detailed set of items for WIPO to work on that would make WIPO into a
much different organizations. For example, it calls for a "Treaty on
Access to Knowledge and Technology," and asks WIPO to undertake
"activities with a view to exploring the promise held by open
collaborative projects to develop public goods, as exemplified by the
Human Genome Project and Open Source Software." WIPO's Enforcement
agenda should be changed, they say, and "Particular attention should be
paid to the need to ensure that enforcement procedures are fair and
equitable and do not lend themselves to abusive practices by right
holders that may unduly restrain legitimate competition." They say WIPO
should study the corrective measures that are necessary to curb abuses
of rights, including the much neglected Article 40 of TRIPS, which
concerns the control of anti-competitive practices in contractual
licenses. Countries are invited to comment on the proposals at the WIPO
General Assembly at the end of this month.
Jamie
----------------
Establishing a "Development Agenda" for the World
Intellectual Property Organization
to be submitted to the 40th Series of Meetings of the
Assemblies of the Member States of WIPO and to the 31st
Session of the WIPO General Assembly
27 September - 5 October 2004
I - Development, the most important challenge facing the
international community
At the dawn of a new Millennium, development
undoubtedly remains one of the most daunting challenges
facing the international community. The importance of facing
up to this challenge has been widely acknowledged in many
international fora at the highest level. The United Nations
adopted the Millennium Development Goals, which established
a firm commitment by the international community to address
the significant problems that affect developing countries
and LDCs. The Programme of Action for the Least Developed
Countries for the Decade 2001-2010, the Monterey Consensus,
the Johannesburg Declaration on Sustainable Development and
the Plan of Implementation agreed at the World Summit on
Sustainable Development, the Declaration of Principles and
the Plan of Action of the first phase of the World Summit on
the Information Society, and most recently the S=E3o Paulo
consensus adopted at UNCTAD XI, have all placed development
at the heart of their concerns and actions. This has also
been the case in the context of the current Doha round of
multilateral trade negotiations of the World Trade
Organization (the "Doha Development Agenda"), which was
launched at the WTO=92s 4th Ministerial Conference, in
November 2001.
II - The development dimension and intellectual property
protection
Technological innovation, science and creative activity
in general are rightly recognized as important sources of
material progress and welfare. However, despite the
important scientific and technological advances and promises
of the 20th and early 21st centuries in many areas, a
significant "knowledge gap", as well as a "digital divide",
continue to separate the wealthy nations from the poor.
In this context, the impact of intellectual property
has been widely debated in past years. Intellectual property
protection is intended as an instrument to promote
technological innovation, as well as the transfer and
dissemination of technology. Intellectual property
protection cannot be seen as an end in itself, nor can the
harmonization of intellectual property laws leading to
higher protection standards in all countries, irrespective
of their levels of development.
The role of intellectual property and its impact on
development must be carefully assessed on a case-by-case
basis. IP protection is a policy instrument the operation of
which may, in actual practice, produce benefits as well as
costs, which may vary in accordance with a country=92s level
of development. Action is therefore needed to ensure, in all
countries, that the costs do not outweigh the benefits of IP
protection.
In this regard, the adoption of the Doha Declaration on
the TRIPS Agreement and Public Health at the 4th Ministerial
Conference of the WTO represented an important milestone. It
recognized that the TRIPS Agreement, as an international
instrument for the protection of intellectual property,
should operate in a manner that is supportive of and does
not run counter to the public health objectives of all
countries.
The need to integrate the "development dimension" into
policy-making on intellectual property protection has
received increased recognition at the international level.
Also in the framework of the WTO, paragraph 19 of the WTO=92s
Doha Ministerial Declaration, in setting a mandate for the
TRIPS Council in the context of the Doha Development Agenda,
refers explicitly to the need to take fully into account the
development dimension.
III - Integrating the development dimension into WIPO=92s
activities
As a member of the United Nations system, it is
incumbent upon the World Intellectual Property Organization
(WIPO) to be fully guided by the broad development goals
that the UN has set for itself, in particular in the
Millennium Development Goals. Development concerns should be
fully incorporated into all WIPO activities. WIPO=92s role,
therefore, is not to be limited to the promotion of
intellectual property protection.
WIPO is accordingly already mandated to take into
account the broader development-related commitments and
resolutions of the UN system as a whole. However, one could
also consider the possibility of amending the WIPO
Convention (1967) to ensure that the "development dimension"
is unequivocally determined to constitute an essential
element of the Organization=92s work program.
We therefore call upon WIPO General Assembly to take
immediate action in providing for the incorporation of a
"Development Agenda" in the Organization=92s work program.
IV - The development dimension and intellectual property
norm-setting: safeguarding public interest flexibilities
WIPO is currently engaged in norm-setting activities in
various technical Committees. Some of these activities would
have developing countries and LDC=92s agree to IP protection
standards that largely exceed existing obligations under the
WTO=92s TRIPS Agreement, while these countries are still
struggling with the costly process of implementing TRIPS
itself.
The current discussions on a draft Substantive Patent
Law Treaty (SPLT) in the Standing Committee on the Law of
Patents are of particular concern. The proposed Treaty would
considerably raise patent protection standards, creating new
obligations that developing countries will hardly be able to
implement. In the course of discussions, developing
countries have proposed amendments to improve the draft SPLT
by making it more responsive to public interest concerns and
the specific development needs of developing countries.
A consideration of the development dimension of
intellectual property must be quickly brought to bear on
discussions in the SCP. If discussions on the SPLT are to
proceed, these should be based on the draft treaty as a
whole, including all of the amendments that have been tabled
by developing countries. Moreover, Members should strive for
an outcome that unequivocally acknowledges and seeks to
preserve public interest flexibilities and the policy space
of Member States. Provisions on "objectives and principles",
reflecting the content of Articles 7 and 8 of the TRIPS
Agreement, should be included in the SPLT and other treaties
under discussion in WIPO.
While access to information and knowledge sharing are
regarded as essential elements in fostering innovation and
creativity in the information economy, adding new layers of
intellectual property protection to the digital environment
would obstruct the free flow of information and scuttle
efforts to set up new arrangements for promoting innovation
and creativity, through initiatives such as the Creative
Commons=92. The ongoing controversy surrounding the use of
technological protection measures in the digital environment
is also of great concern.
The provisions of any treaties in this field must be
balanced and clearly take on board the interests of
consumers and the public at large. It is important to
safeguard the exceptions and limitations existing in the
domestic laws of Member States.
In order to tap into the development potential offered
by the digital environment, it is important to bear in mind
the relevance of open access models for the promotion of
innovation and creativity. In this regard, WIPO should
consider undertaking activities with a view to exploring the
promise held by open collaborative projects to develop
public goods, as exemplified by the Human Genome Project and
Open Source Software.
Finally, the potential development implications of
several of the provisions of the proposed Treaty on the
Protection of Broadcasting Organizations that the Standing
Committee on Copyright and Related Rights is currently
discussing should be examined taking into consideration the
interests of consumers and of the public at large.
V - The development dimension and the transfer of technology
The transfer of technology has been identified as an
objective that intellectual property protection should be
supportive of and not run counter to, as stated in Articles
7 and 8 of the TRIPS Agreement. Yet, many of the developing
countries and LDCs that have taken up higher IP obligations
in recent years simply lack the necessary infrastructure and
institutional capacity to absorb such technology.
Even in developing countries that may have a degree of
absorptive technological capacity, higher standards of
intellectual property protection have failed to foster the
transfer of technology through foreign direct investment and
licensing. In effect, corrective measures are needed to
address the inability of existing IP agreements and treaties
to promote a real transfer of technology to developing
countries and LDCs.
In this regard, a new subsidiary body within WIPO could
be established to look at what measures within the IP system
could be undertaken to ensure an effective transfer of
technology to developing countries, similarly to what has
already been done in other fora such as the WTO and the
UNCTAD. Among these measures, we note with particular
interest the idea of establishing an international regime
that would promote access by the developing countries to the
results of publicly funded research in the developed
countries. Such a regime could take the form of a Treaty on
Access to Knowledge and Technology. It is also important
that clear provisions on transfer of technology be included
in the treaties currently under negotiation in WIPO.
VI - The development dimension and intellectual property
enforcement
Intellectual property enforcement should also be
approached in the context of broader societal interests and
development-related concerns, in accordance with article 7
of TRIPS. The rights of countries to implement their
international obligations in accordance with their own legal
systems and practice, as clearly foreseen by Article 1.1 of
TRIPS, should be safeguarded.
In setting up the Advisory Committee on Enforcement
(ACE) in 2002, the WIPO General Assembly clearly rejected a
"TRIPS-plus" approach to enforcement matters, by
deliberately deciding to exclude all norm-setting activities
from the Committee=92s mandate. In undertaking any future work
under its mandate, the ACE should be guided by a balanced
approach to intellectual property enforcement. The ACE
cannot approach the issue of enforcement exclusively from
the perspective of right holders, nor have its discussions
focus narrowly on curbing the infringement of IP rights.
Such discussions are important, but the ACE must also give
consideration to how best to ensure the enforcement of all
TRIPS-related provisions, including those that would impute
obligations to right holders as well.
Particular attention should be paid to the need to
ensure that enforcement procedures are fair and equitable
and do not lend themselves to abusive practices by right
holders that may unduly restrain legitimate competition. In
this regard, we note that Article 8 of TRIPS states that
corrective measures may be necessary to curb practices that
may adversely affect trade and the international transfer of
technology. One should also bear in mind the related
provision of Article 40 of TRIPS, which addresses anti-
competitive practices in contractual licenses. All of these
provisions of the TRIPS Agreement should be adequately
brought into WIPO=92s framework.
VII - Promoting "development oriented" technical cooperation
and assistance
WIPO is the main multilateral provider of technical
assistance in the field of intellectual property. By virtue
of the 1995 agreement with the WTO, it plays an important
role in providing developing countries with technical
assistance to implement the TRIPS agreement. As a United
Nations specialized agency, WIPO has an obligation to ensure
that its technical cooperation activities are geared towards
implementing all relevant UN development objectives, which
are not limited to economic development alone. These
activities should also be fully consistent with the
requirements of UN operational activities in this field -
they must be, in particular, neutral, impartial and demand-
driven.
Programs for technical cooperation in IP related
matters should be considerably expanded and qualitatively
improved. This is important to ensure that in all countries
the costs of IP protection do not outweigh the benefits
thereof. In this regard, national regimes set up to
implement international obligations should be
administratively sustainable and not overburden scarce
national resources that may be more productively employed in
other areas. Moreover, technical cooperation should
contribute to ensuring that the social costs of IP
protection are kept at a minimum.
WIPO=92s legislative assistance should ensure that
national laws on intellectual property are tailored to meet
each country=92s level of development and are fully responsive
to the specific needs and problems of individual societies.
It also must be directed towards assisting developing
countries to make full use of the flexibilities in existing
intellectual property agreements, in particular to promote
important public policy objectives.
VIII - A member-driven Organization open to addressing the
concerns of all stakeholders, in particular civil society
A balanced system of intellectual property protection
should service the interests of all sectors of society.
Given the broad public policy implications of intellectual
property, it is crucial to involve a commensurately broad
range of stakeholders in the discussions on intellectual
property, both at the national and international levels,
including in all norm-setting activity.
Currently, in WIPO, the term NGO is used to describe
both public interest NGOs and user organizations. This
creates confusion and does not seem consistent with existing
UN practice, as implemented in most of the UN specialized
agencies. It is thus necessary, in WIPO, to take appropriate
measures to distinguish between user organizations
representing the interests of IP right holders and NGOs
representing the public interest.
Subsequently, WIPO should foster the active
participation of public interest non-governmental
organizations in its subsidiary bodies to ensure that in IP
norm-setting a proper balance is struck between the
producers and users of technological knowledge, in a manner
that fully services the public interest.
IX - Conclusion
A vision that promotes the absolute benefits of
intellectual property protection without acknowledging
public policy concerns undermines the very credibility of
the IP system. Integrating the development dimension into
the IP system and WIPO=92s activities, on the other hand, will
strengthen the credibility of the IP system and encourage
its wider acceptance as an important tool for the promotion
of innovation, creativity and development.
The General Assembly is invited to
make comments to this document and
to decide on the proposals contained
in the Annex.
ANNEX
"WIPO DEVELOPMENT AGENDA": ISSUES AND MEASURES TO BE
CONSIDERED
Without prejudice to further initiatives, the following
proposals, inter alia, could be considered by the General
Assembly for the implementation of the suggested "WIPO
Development Agenda".
1) Adoption of a high-level declaration on intellectual
property and development
The Declaration could be adopted by the General-
Assembly itself or by a specially convened international
conference on intellectual property and development. The
Declaration should address the development concerns that
have been raised by WIPO Member States and the international
community at large.
2) Amendments to the WIPO Convention
In order to ensure that development concerns are fully
brought into WIPO activities, the Member States may consider
the possibility of amending the Convention Establishing the
World Intellectual Property Organization (1967). The
amendment would explicitly incorporate the development
dimension into WIPO=92s objectives and functions. Since
Article 4 ("Functions") of the WIPO Convention relates its
Article 3 ("Objectives"), paragraph (i) of Article 3 of the
WIPO Convention could be amended to read as follows:
"(i) to promote the protection of intellectual
property throughout the world through cooperation
among States and, where appropriate, in collaboration
with any other international organization, fully
taking into account the development needs of its
Member States, particularly developing countries and
least-developed countries"
3) Treaties under negotiation
Treaties under negotiation in WIPO, such as the SPLT,
should include provisions on the transfer of technology, on
anticompetitive practices as well as on the safeguarding of
public interest flexibilities. Moreover, those treaties
should include specific clauses on principles and
objectives. The language provided in Articles 7 and 8 of the
TRIPs Agreement is an adequate starting point, taking into
account, however, that WIPO treaties do not expressly deal
with "trade-related issues".
4) Technical cooperation
We urge the Program and Budget Committee, in its next
sessions, to establish consistent pluriannual programs and
plans for cooperation between WIPO and developing countries
aiming at strengthening national intellectual property
offices, so that they may effectively become an acting
element in national development policy. Those programs
should be guided, moreover, by the principles and objectives
set out in Section VIII above.
5) Intellectual property and transfer of technology
We propose the creation of a Standing Committee on
Intellectual Property and the Transfer of Technology, for
the consideration of measures to ensure an effective
transfer of technology to developing countries and LDCs.
6) Joint WIPO-WTO-UNCTAD international seminar on
intellectual property and development
WIPO could jointly organize an international seminar
with the WTO and UNCTAD on intellectual property and
development, with the active participation of all relevant
stakeholders, including public interest NGOs, civil society
and Academia.
7) Participation of civil society
WIPO must take the appropriate measures to ensure the
wide participation of civil society in WIPO=92s activities,
changing WIPO=92s terminology with regard to NGOs.
8) Working Group on the Development Agenda
Without prejudice to the previous proposals, a Working
Group on the Development Agenda could be established to
further discuss the implementation of the Development Agenda
and work programmes for the Organization on this matter,
reporting to the 41st WIPO General Assembly.
--
James Love, Director, Consumer Project on Technology
http://www.cptech.org, mailto:james.love@cptech.org
tel. +1.202.387.8030, mobile +1.202.361.3040