[Ip-health] US paper counters Development Agenda in WIPO

[Martin Khor]

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US draft paper counters Development Agenda in WIPO


The US has informally circulated a draft paper containing its views and proposals for
the meeting in WIPO (World Intellectual Property Organisation) on a Development Agenda
scheduled for 11-13 April.

The paper, titled "Establishment of a Partnership Program in WIPO" states that WIPO
already has a "robust development agenda" in all its work, and it clearly ignores and
sidesteps the demands of the proponents of a "development agenda" in WIPO.

Those demands, as elaborated in the Development Agenda proposal by Brazil and
Argentina and 12 other countries include an amendment to the WIPO Convention (1967),
a reorientation of the content of present proposals in treaties now being negotiated at
WIPO, the establishment of new pro-development treaties and a change in WIPO's
technical assistance activities.

In contrast to this reform programme, the US paper merely proposes the creation of a
"WIPO Partnership Program", an Internet-based database to bring together "donors and
recipients of IP development assistance."

The meeting in WIPO on 11-13 April is shaping up to be a battle between those countries
that want to see a change in WIPO so that its work will be more development-oriented,
and those that want to maintain the status quo.

Below is a report By Sangeeta Shashikant on the US paper and the context of the Development
Agenda initiative in WIPO.   It was published in the SUNS (South-North Developmenht
Monitor) on 24 March and is reproduced here with permission.

With best wishes
Martin Khor
TWN

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US draft paper counters Development Agenda in WIPO

By Sangeeta Shashikant, Geneva, 23 March 2005


A draft proposal by the United States titled
"Establishment of a Partnership Program in WIPO" for a forthcoming World
Intellectual Property Organization (WIPO) meeting on the Development Agenda in
April is circulating among some delegations in Geneva.

Stating that WIPO already has a "robust development agenda" in all its work, the draft
paper by the US clearly ignores and sidesteps the demands of the proponents of a
"development agenda" in WIPO.

Those demands, as elaborated in the Development Agenda proposal by Brazil and
Argentina (WO/GA/31/11, dated 27 August 2004) and later co-sponsored with 12
other developing countries, include an amendment to the WIPO Convention (1967),
a reorientation of the content of present proposals in treaties now being negotiated at
WIPO, the establishment of new pro-development treaties and a change in WIPO's
technical assistance activities.

In contrast to this reform programme, the US paper proposes that WIPO continue to
"promote intellectual property around the world" as its way of fostering development.
Its only new suggestion is the creation of a "WIPO Partnership Program", an
Internet-based database to bring together "donors and recipients of IP development
assistance."

The proposed database would have sections on partners, countries or regions, and
success stories.  A WIPO partnership office would evaluate requests for assistance
and seek partners to fund and execute the projects.

The draft paper is expected to form the basis of the US position at the forthcoming
WIPO inter-sessional inter-governmental meeting on the Development Agenda on
11-13 April. The meeting had been mandated by the WIPO General Assembly last
October, in which the issue of a WIPO development agenda had figured prominently.

Argentina and Brazil had then presented a formal proposal for the establishment of
a Development Agenda for WIPO, in which development would be established in all
the work and bodies of the organization.   Co-sponsored by 14 countries, it was also
supported from the floor by the Asian and African Groups and many individual
developing countries.

The US draft paper states that "WIPO already has a robust 'development agenda' in
all of its work for a long time, delivering high-quality development activities to
Member States on a demand-driven basis." In the past decade, WIPO's budget has
tripled, greatly expanding WIPO's role in IP (intellectual property) development
assistance. "WIPO has played and must continue to play, an important role in
fostering development through the promotion of intellectual property around the
world."

The paper puts forward the view that WIPO is already fulfilling its function as a UN
agency, thus implying that reform is unnecessary.  It says that WIPO's contribution,
as a specialized agency of the UN, "to development is made through promoting
creative intellectual activity and technology transfer, has a very important, albeit
somewhat limited, role to play in fostering economic development and cultural
diversity".

WIPO's role as a UN agency and in achieving the UN's development goals is defined
narrowly by the paper, which states that WIPO is not a core development agency like
the United Nations,  UNCTAD or the UNDP.  The 1974 Agreement (between WIPO
and the UN), "while encouraging coordination and cooperation with the UN and its
organs and agencies (in Article 2), also seeks to avoid overlapping or conflicting
relationships with other UN bodies that would result in waste or inefficient
expenditure of UN resources," says the paper.

"WIPO's contribution to overall the UN development goals is best achieved not by
diluting WIPO's role within the UN system but, rather, by strengthening WIPO's
intellectual property expertise and its IP-related development assistance."

The US proposal thus advocates that WIPO should concentrate only on  promoting
intellectual property and should leave development concerns to other UN agencies.

This is clearly a counter to the Development Agenda proposal of Brazil, Argentina
and others that made the case that  "as a member of the UN system, it is incumbent
upon 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's
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."

The Brazil-Argentina proposal asks that the WIPO Convention (1967) be amended
to ensure that the "development dimension" is unequivocally determined to constitute
an essential element of the Organization's work program. It called on WIPO to act
immediately to incorporate a "Development Agenda" in its work programme.

In contrast to the systemic reforms called for by the developing countries, the US
paper proposes the creation of a "WIPO Partnership Program". This Internet-based
tool will "bring together all stakeholders to match specific needs with available
resources and to amplify the developmental impact of intellectual property
development assistance" says the proposal.

The proposed partnership program would have two features: a "WIPO Partnership
Database" and a "WIPO Partnership Office".

The database would bring together donors and recipients of IP development
assistance, and have three sections:  a "Partners Section" (that would include IGOs,
NGOs, IP offices, private sector groups, universities, charities and others wishing to
assist developing countries on IP issues); a section on "Country/Region" (where
developing countries and their institutions would state their specific needs for IP
assistance requests); and a "Success Section" that lists successful partnership matches.

The partnership office would evaluate requests for assistance and seek partners to
fund and execute projects.  WIPO's international Bureau would maintain the website
and database as well as the Partnership Office.

According to several developing-country officials as well as experts on IP and
development, the US draft paper does not address the concerns raised by the
proponents of the WIPO development agenda.

Nor does it address the concerns raised in the "Geneva Declaration on the Future of
the World Intellectual Property Organization" issued last September by over 500
eminent persons such as scientists, economists, legal experts, consumer advocates,
and health activists (including two Nobel Laureates), and in the NGO statement
endorsed by 25 organizations in support of the Development Agenda initiative.

The US draft proposal is viewed as an attempt to set aside the Development Agenda
initiative in charting a new course for WIPO and incorporating economic, social and
cultural development within its mission, instead of its present single-minded pursuit
of stronger forms of intellectual property rights without consideration of the negative
effects.

A major concern in the developing countries' Development Agenda initiative is the
norm-setting activities taking place in various WIPO technical committees, which
require developing countries to take on IP standards and obligations that are far
beyond what is required under the TRIPS Agreement, at a time when they are still
struggling with implementation of their TRIPS obligations.

The developing countries want from WIPO and its many technical committees
outcomes that preserve public interest flexibilities and the policy space of Member
states to apply IP standards according to their development needs and in a way that
enables development.

The Development Agenda proposal also recognizes that access to information and
knowledge are essential elements in fostering innovation and creativity in the
information age.  It thus takes issue with the addition of new layers of IP protection
(as is taking place in WIPO), particularly to the digital environment as this obstructs
the free flow of information and hampers efforts to set up new arrangements for
promoting innovation and creativity.

The Development Agenda proposal is also critical that existing IP agreements and
treaties have failed to promote a real transfer of technology to developing countries
and calls for corrective measures, including clear provisions on technology transfer
to be included in treaties currently under negotiation in WIPO.

The Development Agenda also called for WIPO's  technical assistance programme to
ensure that national IP laws are tailored to meet each country's level of development
and that developing countries are trained to the use of the flexibilities (oriented to
public objectives) in existing IP agreements.

According to experts on IP and development, WIPO would need to be reformed in
two ways, if it is to incorporate the "development dimension" into its activities. The
first aspect includes reviewing existing activities and treaties that have been
negotiated or that are on the negotiating table in WIPO to ensure that these treaties do
not restrict or prevent developing countries from having access to tools such as
information and technology that they need to develop.

The review should include the WIPO Copyright Treaty (WCT) and the proposed
Substantive Patent Law Treaty and the Treaty on the Protection of Broadcasting
Organizations, which are now being negotiated.

The other aspect of a Development Agenda, according to the experts, would be a
"positive agenda" for development, which could include the creation of new treaties,
for example, on access to knowledge, on access to technology and on minimum
limitations and exceptions in relation to copyright and patent protection.

Several developing-country officials, as well as  independent experts and NGOs
involved in IP issues, are of the view that the forthcoming April meeting provides
developing countries with a vital opportunity to advance their development agenda.

However, as the US draft proposal shows, it will be an uphill battle to convince the
major developed countries of the need for even a little change, let alone a systemic
reform in WIPO.
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