[Ecommerce] Positions of WIPO Member States on an a2k Treaty

[Thiru Balasubramaniam]

Source: IIM/3/3 Prov.
ORIGINAL: English
Date of publication: August 12, 2005




I searched the latest draft WIPO Secretariat Report on the 3rd Session
of the IIM (July 20-22) for WIPO Member States' positions on a proposed
access to knowledge treaty. Based on the draft report, this is what I found=
.

Thiru Balasubramaniam





------------------


81. The Delegation of Brazil appreciated the opportunity, on behalf of
the =93Group of Friends of Development=94, to introduce and address items 2
and 3 on the list of proposals, which were also addressed in documents,
WIPO/GA/31/11 and IIM/1 /4.

<SNIP>

There was, in addition to the proposal on the elaboration of a treaty on
access to knowledge and technology, a number of ideas which they
believed the Organization should explore. Those ideas and proposals
could be found on pages 26 to 28 of document IIM/1 /4. It included
measures, such as, an undertaking by developed countries to provide
fiscal benefits to firms transferring technologies to developing
countries of the same type that were often available in the developed
countries for firms, that transferred technologies to nationally less
developed regions and tax advantages for R&D performed abroad as for R&D
done at home. There was also an idea that developed countries could
provide fiscal incentives, to encourage enterprises to train scientific
engineering and management graduates from developing countries, with a
view to using their knowledge for the development of technology in their
countries of origin. The document also proposed certain multilateral
supportive measures, which WIPO should look at. For example, there was
the idea of establishing a special fee on applications deposited through
the Patent Cooperation Treaty (PCT), the revenues of which would be
earmarked for the promotion of research and development activities in
developing and least-developed countries; adoption of commitments like
those contained in Article 66.2 of the TRIPS Agreement expanded to
benefit all developing countries and so on. The Delegation stated that
it was not meant to be an exhaustive list of proposals, and that it was
only trying to make a contribution to the debate. It was also under no
illusions, that it was not a complex problem. While aware of the
complexity of that issue, it thought that their acknowledgement of that
complexity should not keep them from effectively addressing it, given
its importance for the social, economic and environmental welfare of
developing countries and LDCs. It was important to address that issue,
for the sake of the credibility of the IP system. Basically, what they
would be trying to do was to ensure that what was understood to be a
fundamental objective of the intellectual property system, would
actually materialize in a manner that would benefit all stake holders
and countries, irrespective of their development levels. Therefore, the
Delegation was interested in listening to what the other members of the
Organization would have to say about its proposals, and looked forward
to their views on how they believed that those ideas could be put into
practice and improved.




82. The Delegation of the United Kingdom, speaking on behalf of the
European Community and its Member States, said that it had comments on
Items 2 and 3 on the list.

<SNIP>

Regarding item 3, on the proposal for a treaty on access to knowledge,
the EC and Member States noted that the proposal made by Argentina and
Brazil included elements, which appeared to go beyond WIPO=92s competence,
adding however, that the organization would have a role to play in the
debate on such a proposal. The Delegation also noted that a proposal had
already been made in the Standing Committee on Copyright and Related
Rights, that the question of exceptions to copyright be debated in that
body.



85. The Delegation of Bangladesh stated that it had comments on
proposals 2 and 3.

<SNIP>

The Delegation mentioned that with regard to the third proposal, it felt
that it needed to be pursued, because having access to knowledge and
technology was very important, not only for the developing countries but
also for LDCs. On aspects of norm-setting, it said that they had to
elaborate mechanisms to facilitate access to knowledge and technology
for developing and least-developed countries. It thought that those were
good proposals that needed to be addressed.




86. The Delegation of Japan referred to Item no.2, namely, the
establishment of the WIPO Standing Committee on Intellectual Property
and Technology Transfer, and believed that WIPO had already acknowledged
the importance of technology transfer, and that was the reason behind
the agreement between WIPO and the UN regarding the transfer of technology.

<SNIP>

The Delegation mentioned that with regard to item no. 3, namely, the
elaboration of the treaty on the Access to Knowledge and Technology, it
was not against the idea of discussing access to knowledge and
technology in the context of intellectual property. However, it
suggested that what they should do first was to identify the programs in
the current situation concerning access to knowledge and transfer of
technology. It was premature to consider the possibility to conclude the
treaty on access to knowledge and technology.





88. The Delegation of Chile stated that they had no instructions from
the capital regarding proposal 2 and would like to think about it a bit
more. Therefore, it would like to refer to proposal 3 from the =93Friends
of Development=94 about the treaty on access to knowledge and technology.


Therefore, it would like to refer to proposal 3 from the =93Friends of
Development=94 about the treaty on access to knowledge and technology. It
thought that it was an interesting proposal and would like to explore it
further. The Delegation had heard other delegations who said that some
issues had already been dealt with in committees, such as limitations
and exceptions in the copyright committee. It did not think that it had
to be engraved in stone, that it had to remain in a particular
committee. Many of the issues were cross-cutting in nature and not
confined to the area of copyright or patents or trademarks. Issues
relating to competition policies, Internet and IP were cross-cutting as
well, and were regulated by different countries in different ways.
Issues such as the protection of the public domain were interesting and
could be examined. It thought it was a good idea to have a treaty on
access to knowledge, and was open to discussions on that.



89. The Delegation of the United States stated that with regard to
proposal number 2 on the establishment of a standing committee on
Intellectual Property and Technology Transfer, it disagreed with the
proposal to add a new WIPO Standing Committee, particularly in the light
of WIPO=92s limited resources and given WIPO=92s long standing approach to
finding the most cost effective approach to addressing such issues.

<SNIP>

With regard to proposal number three, on the elaboration of a treaty on
access to knowledge and technology, the Delegation said that it could
not support the proposal. It strongly disagreed with the premises
underlining the proposal, elaborated by the Delegation of Brazil as well
as the =93Friends of Development=94. The Delegation strongly believed that
intellectual property protection had proven to be the strongest driver
rather than an impediment to technology transfer. The IP system had
proven to be a powerful driver of scientific and technological
information into the public domain, as even recognized in the =93Friends
of Development=94 proposal, and the Delegation quoted, =93Information and
Patent applications has increased the world store-house of knowledge,
which is now available for use by all countries=94. The Delegation
believed that such a treaty was not necessary and remained concerned
that the proposal could impede, rather than promote, access to
technology, particularly in the light of the premises upon which it was
based.


92. The Delegation of Colombia referred to the two issues under
discussion. First of all, the Delegation spoke about issue three, the
proposal to consider the elaboration of a treaty on access to knowledge
and technology. The Delegation firmly supported the proposal to
elaborate a treaty on access to knowledge and technology, because it
ensured commitments on access to knowledge and technology. Promotion of
access by developing countries could be financed by public institutions
in the developed countries. It added that there should be clear measures
to guarantee access, and to eliminate any obstacles to access to
knowledge and technology. The transfer of technology, as a strategic
resource, was a basic building block of development. The spread of
technology should go hand in hand with effective and practical
mechanisms, that would generate the capacity to absorb such
technologies, and lead to the use of those technologies for the
promotion of well being. The Delegation said that in a globalized world,
it could not consider development, without effective access to
knowledge. Knowledge was considered as a resource, and hence, one of the
basic pillars for human and cultural development of countries.
Therefore, it supported the proposal submitted by the group of =93Friends
of Development=94.


93. The Delegation of Brazil wanted to comment on the two issues that
were raised by other delegations

<SNIP>

Secondly, on the issue of the agreement on access to knowledge, the
Delegation understood that it was a major issue relating to the future
of the intellectual property system, be it in a developing country or in
a developed country. Brazil was following the discussions among
academics, in many universities in the United States of America, Europe
and other corners of the world, who were concerned with the fact that
patents were being granted under terms, that did not promote full
disclosure of inventions, and had lead to undue appropriation of
information, meant to be in the public domain. Additionally, there was
an encroachment, an appropriation by patent holders, of information
related to basic science, which was not meant to occur in the patent
system. As was known, often times, basic science was a result of
research performed in universities, under the funding of the State. As
the activity was subsidized from public funds, that information should
be publicly available, for the benefit of human kind. Therefore, it was
of great concern that there was a trend to include such information in
patent claims, thereby making it the property of private corporations
and removed from the public domain. Such information was no longer
accessible to people, students, teachers, universities and researchers
in the developing world. The Delegation was aware that legislation was
being adopted in developed countries, for instance in the United States
of America where there was an incentive for universities to pass on
inventions that were produced within the academic world, under contract
with the government and publicly funded. The results that may be
patentable from such inventions, could then be transferred to the
private sector of that particular country. That was worrisome, because
it meant that there was an increase in the privatization of university
and academic activities, and would not stimulate innovation worldwide.
In fact, it could have the opposite effect, by removing knowledge from
the general pool of information that was available to all. Therefore,
the Delegation believed that action was needed to counter that trend,
and that action could be along the lines of a treaty on access to
knowledge, to protect the public domain from the encroachment of claims
made by private individuals and private corporations, to ensure that the
information would remain publicly available, feeding and nurturing,
research, science and education all over the world. That was an issue
that had also been looked at by UNESCO, and the Delegation said that
WIPO could not remain unconcerned with this very wide ranging problem.
In fact, it thought that a treaty on access to knowledge was the real
power tool for development, that WIPO should pursue.


97. The Delegation of the United States of America said that it would
like to briefly respond to two points that had been made by the
Delegation of Brazil.

<SNIP>



With regard to the second point made by the Delegation of Brazil, the
Delegation totally rejected the premise and the mischaracterization of
US law with regard to patenting of government funded research. The
Delegation explained that the United States of America, since the early
1980s, under the Bayh-Dole Act, had had a long tradition of using the
intellectual property system to transfer publicly funded research to the
private sector for the benefit of society as a whole. That had resulted
in some US $ 30 billion of economic activity, apart from the creation of
new jobs and entire new industries. The patent system had provided
incentives to private entrepreneurs to take the results of
publicly-funded research to develop useful products and take them to the
marketplace. Without those incentives, publicly funded research prior to
that time had sat on a shelf and not developed for the benefit of
society. The Delegation stated that it understood that several other
countries, including perhaps Brazil, had adopted similar technology
transfer statutes modeled in part on the
Bayh-Dole statute and that it would be very interested in hearing from
Brazil more about their domestic statute and the features that it had in
common with that statute of the United States of America.



98. Referring to the issue of elaborating a treaty on access to
knowledge and technology, the Delegation of Honduras stated that it
thought that it would very important for developing countries, as it
would give the appropriate space to consider and discuss fundamental
issues in which delegations could engage. For instance, this could be
the exploration of legal ways to access foreign patent information and
technology; technical aspects relating to the assimilation of knowledge
and exchange of information fundamental for national education and
scientific research. It added that that process would consequently
foster and generate innovation and creativity, by taking the
breakthroughs of basic research into the next step of applied research
in essential technology, that had to do with sensitive areas affecting
developing countries, such as water, sanitation, health, agriculture,
education, food and innovative applied technologies. The Delegation
pointed out that the proposal of the African group regarding the
transfer of technology was crucially important and that it supported it.
Concerning item 2 of the list of proposals, the Delegation added that a
constructive and positive debate could continue in the proper forum,
which could be the continuation of the IIM Meetings after the next
General Assembly.




99. In response to the comments of the Delegation of the United States
of America, the Delegation of Brazil, said that it had the impression
that the United States totally rejected any discussions regarding
development in general. The Delegation thought that the United States
totally rejected anything that might have brought about changes in the
modus operandi of the Organization or in favor of developing countries,
and added that it hoped that that was not the case. The Delegation said
that it thought that there was no misconception, and while not
pretending to be an expert on the Bayh-Dole Act, it understood that it
was a means of promoting transfer of publicly-funded research in the
universities to favor, not private entrepreneurs in general, but US
private entrepreneurs, giving them a competitive advantage over
entrepreneurs elsewhere. The Delegation further stated that the degree
to which science was funded in the United States of America was really
not comparable to funding of science in any developing country, and that
that had to be taken into account. The Delegation added that there were
other issues involved that it would not get into, such as that being, in
its opinion, an indirect means of subsidization of private entrepreneurs
through governments subsidies. The Delegation said that obviously that
was not an issue that had to do with WIPO but with WTO=92s subsidies
agreement and with possible trade distorting effects, and that was not
what it was dealing with in that forum, but rather the consequence of
those practices on the public domain. The Delegation pointed out that it
was sure that many countries worldwide would be attempting to adopt
legislation that would inject a bit more dynamism in research and
innovation activities in the academic field, and that how successful
they would be was a big question that was still in the air. Concerning
the Brazilian legislation, the Delegation explained that it had
legislation on innovation that was not comparable to the Bayh-Dole Act
at all, but it did deal with some of those issues and gave university
researchers a little bit more freedom to carry out their studies and
eventually become entrepreneurs themselves. The Delegation further added
that the whole idea of universities as incubators and promoting start-up
companies was very dimly referred to in that legislation but that the
legislation was not at all sophisticated as the one that was in force in
the United States. Therefore, the Delegation said that it was not really
a misperception but that it was just that countries had different
mechanisms by which they protected their national entrepreneurial
activities, and that what was of concern was that such mechanisms were
working to the detriment of the public domain. Even though it may have
been a global trend and all countries were going in that direction, that
was only one more reason to consider adopting counter measures to defend
the public domain. The Delegation said that Brazil could not just accept
that that was a reality and not do something to defend the public
domain. The Delegation concluded that the access to knowledge agreement
was perhaps more relevant in the face of those new trends.

100. The Delegation of the United States of America said that it had a
brief response to the Delegation of Brazil, in order to assure him that
in each of the IIMs, including the current one, the United States had
expressed its willingness to engage in an in-depth discussion on the
development issues. The Delegation added that the United States fully
supported the development goals of the United Nations, including those
expressed in the agreement between WIPO and the UN. The Delegation
pointed out, however, that it disagreed with the premises upon which
most of the proposals from the =93Friends of Development=94 were based,
which appeared to disregard the fact that WIPO had addressed the
development dimension in all of its work, whether norm-setting,
technical assistance or other activities, and the notion that
intellectual property impeded or somehow acted against the development
interests of developing countries. The Delegation added that the
experience of numerous developing countries, who had successfully used
the intellectual property system to develop industries, whether for
aircrafts or other sectors, was testament to the powerful role that
intellectual property could play in development. The Delegation stated
that it thought that they were getting to the heart of the matter in the
debate and that was why it supported a fuller discussion in the
Permanent Committee on Development Cooperation whose mandate was not
limited, as confirmed by the Secretariat.