[Ip-health] TWN Info Service: Development meeting begins; FOD Group submits new paper

[Sangeeta]

TWN Info Service on Intellectual Property Issues
30 June 2006
Third World Network
www.twnside.org.sg


Development meeting begins; FOD Group submits new paper

A week-long meeting on a =93WIPO Development Agenda=94 opened at the World
Intellectual Property Organisation on Monday to discuss the 111 proposals
that have been submitted by Members to date.

Below is a report on a paper (PCDA/2/2, dated 23 June) by the Friends of
Development in the form of a draft Decision which the group had hoped would
be the basis discussions during the week and that the Committee would adopt
as recommendations to the upcoming General Assembly in September.

It was published in the SUNS #6055 Tuesday 27 June 2006

Sangeeta Shashikant
Third World Network
=A0
-------------------------------------------------------

Development meeting begins; FOD Group submits new paper

Geneva, 26 June (Martin Khor) -- A week-long meeting on a WIPO Development
Agenda opened at the World Intellectual Property Organisation on Monday
to discuss the various proposals of members according to the
six clusters of issues.

After a lengthy consultation on procedural matters, it was agreed that the
discussion would be on each cluster of issues, which would entail a broad
discussion on the cluster, "as broadly as possible", and not to conduct the
discussion proposal by proposal, or by whether the proposal enjoys
consensus.

This compromise on procedure was to satisfy delegations, especially those
belonging to the Group of the Friends of Development (FOD), that wanted to
proceed on the basis of a more structured discussion on what concrete
decision or recommendations to send on to the WIPO General Assembly that
meets in September.

The meeting is the second session of the Provisional Committee on Proposals
related to a WIPO Development Agenda (PCDA). The first session was held in
February.

This is the second year of discussions on a development agenda for WIPO
after the Development Agenda initiative was launched, mainly through the
efforts of the FOD, at the WIPO General Assembly in September 2004.

The FOD comprises 14 developing countries: Bolivia, Brazil, Cuba, Dominican
Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa,
Tanzania, Uruguay and Venezuela. Though not members of the FOD, many other
developing countries also support a Development Agenda in WIPO.

Three inter-sessional meetings (in what was dubbed as the IIM process) were
held up to the General Assembly in September 2005, and the Assembly then
established the PCDA to carry forward the process.

This week's meeting is scheduled to come up with recommendations to the nex=
t
General Assembly on how to carry the Development Agenda work forward.

The FOD has meanwhile submitted a paper (PCDA/2/2, dated 23 June) in the
form of a draft Decision which the group had hoped would be the basis for
this week's discussions. The paper summarises many proposals in earlier FOD
papers, but this time in the form of a Decision that the Committee sends on
as recommendations to the General Assembly.

The FOD paper also incorporates some proposals made earlier by other
delegations, especially by the African Group, and by a group led by Bahrain=
,
while FOD also excluded some of its own proposals. Even some proposals of
the US were included. This was an effort to make the draft Decision
inclusive, said Brazil at today's meeting, explaining the nature of the FOD
paper.

In a pre-meeting consultation with coordinators of some regional groupings
last Friday (23 June), the chair of the PCDA, Ambassador Rigoberto Gauto
Vielman of Paraguay suggested that the 111 proposals put forward so far by
members be placed into three categories: those that enjoyed consensus, thos=
e
where agreement was possible after further work, and those where consensus
would be difficult. The implication was that work would then focus first on
the first category.

The 111 proposals have been listed under six clusters in an Annex in the
report of the PCDA's first session on 20-24 February 2006 (document PCDA/1/=
6
Prov. 2). The clusters are (A) technical assistance and capacity building;
(B) norm-setting, flexibilities, public policy and public domain; ( C)
technology transfer, ICT and access to knowledge; (D) assessments,
evaluation and impact studies; (E) institutional matters including mandate
and governance; and (F) other issues.

The Chair's proposed procedure (which had in the first session also been
suggested by some developed countries) was unacceptable to the FOD, which
feared that a discussion issue-by-issue would again make the PCDA only a
talk shop, without a concrete decision being transferred to the General
Assembly. The group also felt that this procedure would focus the discussio=
n
on relatively simple matters such as increasing technical assistance, while
the more complex proposals to reform WIPO into a more development-oriented
organization would be shunted aside on the ground that these did not enjoy
nor was it likely to obtain consensus.

With the Chair's proposed procedure failing to win agreement, the whole
morning of the first day was spent on finding a compromise. Thus it was
agreed that the meeting would not discuss proposal by proposal, but would
take each cluster and discuss it "as broadly as possible", said the Chair.
Delegations could then suggest draft recommendations, "but we can't prejudg=
e
what to do these drafts and the future work," said Rigoberto Gauto Vielman.

Through this procedural decision, the FOD paper on a draft Decision would
not be the basis for the meeting's discussion. The developed countries,
backed by some developing countries, wanted to avoid the FOD paper being th=
e
basis.

On the other hand, the FOD is able to introduce the specific proposals in
its latest paper during the discussions cluster by cluster.

The FOD paper, in an introduction, explains the sources of the proposals
(including how some of the proposals by Africa Group, Bahrain, the US, etc.
had been incorporated in the various sections).

In a general section, the paper says that the PCDA recommends to the WIPO
General Assembly:

-- To initiate a process for the adoption of a high-level declaration on
intellectual property and development;

-- To reaffirm the commitment of WIPO Member States with the principles and
goals of the UN system - mainly economic and social development - and with
the mandate of WIPO as a UN-specialized agency by adopting the following
declaration: "Nothing in the 1967 WIPO Convention prevents WIPO from
undertaking any initiative to consider various models of innovation other
than intellectual property. Attempts to pursue upward harmonization of laws
on IP protection, without proper consideration of the potential social and
economic costs for developing countries and LDCs, runs contrary to WIPO s U=
N
mandate".

The FOD paper then has the PCDA recommend that the General Assembly adopt
several principles on Technical Assistance (TA): that it be development
oriented; the programmes should be coherent with relevant international
instruments and national development policies; they should have an
integrated approach, to include matters related to competition policy and
related regulatory regimes; the provision of TA should be neutral; the
activities should ensure that IP laws are tailored-made and demand-driven;
the WIPO s TA staff and consultants should be fully independent; the
programmes should be continually evaluated independently; and transparency
should be ensured;

The General Assembly would also set up guidelines and disciplines on TA to
ensure:

-- transparency, by making available information about design, delivery,
cost, financing and implementation of TA programs;

-- the development of the technical capacity of countries to fully use
in-built flexibilities existing in the intellectual property international
system to advance national pro-development policies and, in particular, the
pro-development provisions of the TRIPS Agreement, and the Doha Declaration
on the TRIPS Agreement and Public Health;

-- that the relationship between intellectual property and competition law
are fully explored to ensure an integrated approach;

-- strengthening of national capacity for the protection of local creations=
,
innovations and inventions in order to develop national scientific and
technological infrastructure;

-- independence and transparency in cooperation programs; independence of
providers; continuous evaluation to ensure its effectiveness;

-- that the social costs of intellectual property protection and enforcemen=
t
are maintained at a minimum in developing countries; the implementation of
international obligations in an administratively sustainable way, that does
not overburden scarce national resources.

Other proposals on TA are for the promotion of model approaches, overseen b=
y
Member states, on how to implement the relevant provisions on
anti-competitive practices, and flexibilities and limitations of the TRIPS
and WIPO's agreements; and setting up financial mechanisms to promote
development-friendly technical assistance.

Regarding WIPO's norm-setting activities, the FOD paper proposes that the
WIPO General Assembly adopt the following principles, guidelines and treaty
provisions to ensure that WIPO norm-setting activities:

-- are based on Member- driven and transparent work plan and strategic
vision;

-- take into account the differences in the level of economic, social and
technological development among Members and do not promote harmonization
initiatives detrimental to developing and least-developed countries;

-- preserve and protect a robust and lively public domain, while
safeguarding exceptions and limitations;

-- reflect not only the interests of developed countries and IP rights
holders, but also those of developing countries, the public stakeholders an=
d
civil society;

-- are fully compatible with and actively support other international
instruments that reflect and advance development objectives, in particular
Human Rights international instruments;

-- provide developing countries with policy space commensurate to their
development needs and requirements through flexibilities, exceptions,
limitations and the provision of protection adequate to the level of
development and national conditions of each country;

-- are preceded and effectively guided by debates and public hearings, with
open participation by all member-countries and all stakeholders, with a vie=
w
to assessing potential impacts as well as the desirability of new
norm-setting activities;

-- put in place a system, overseen by member-countries, to ensure continuou=
s
objective evaluation of the impact and costs, especially for developing
countries, of higher standards of IPR protection;

-- provide mechanisms designed to curb anti-competitive IP-related
practices.

The General Assembly would also agree on the inclusion in treaties and norm=
s
provisions on, inter alia: (a) objectives and principles; (b) safeguard of
national implementation of intellectual property rules; ( c) against
anti-competitive practices and abuse of monopoly rights; (d) promotion of
transfer of technology; (e) longer compliance periods for developing
countries; (e) flexibilities and "policy space" for the pursuit of public
policies; (f) exceptions and limitations.

There would also be a decision to set up, within WIPO, a mechanism to carry
out, on a Member-driven basis, independent and evidence-based "Development
Impact Assessments" with respect to norm-setting and technical assistance
activities, including by means of compilation of empirical evidence,
analysis of cost-benefit of norms and the examination of alternatives withi=
n
and outside the IP system.

Said the paper: "These endeavours should precede and guide any norm-setting
activity within WIPO and should ensure a continuous evaluation of the actua=
l
impact and costs of treaties and norms that have been adopted, so that the
objectives pursued by means of new treaties or the revision of existing one=
s
can be achieved always under the lowest possible levels of monopoly of
knowledge. In the case of technical assistance and capacity building
indicators and benchmarks for evaluation should be established."

The following draft decisions are also proposed by the paper:

-- To separate the norm-setting functions of the WIPO Secretariat from thos=
e
of technical assistance;

-- To promote and develop alternative innovation-protection models and open
collaboratively projects such as Free and Open Source Software and Creative
Commons;

-- To launch negotiations on a Treaty on Access to Knowledge and Technology=
;

-- To initiate negotiations on a multilateral agreement where signatories
would place into the public domain, or find other means of sharing at
affordable cost, the results of publicly funded research;

On technology issues, the paper also proposes a decision to develop, adopt
and promote development-friendly principles, guidelines and disciplines on
transfer of technology that (a) enable a dynamic technological cooperation
between developed and developing countries; (b) enable developing countries
to have access to technologies from developed countries; ( c) mainstream
transfer of technology in WIPO's norm-setting activities; and (d) set up
multilateral supportive measures for the promotion and dissemination of
technology.

Other proposed technology-related decisions are to establish a new body,
within WIPO, for promoting transfer of technology; and to formulate
recommendations on policies and measures industrialized countries could
adopt for promoting transfer and dissemination of technology to developing
countries.

Finally, the FOD paper also proposes other decisions:

-- To devise a mechanism whereby countries affected by anti-competitive
practices request developed countries authorities to undertake enforcement
actions against firms headquartered or located in their jurisdictions and t=
o
promote measures to curb and combat IP-related anti-competitive practices,
and abuse or misuse of rights by rights holders;

-- To ensure wider participation of public interest groups in WIPO
discussions, adopting UN criteria regarding NGO's terminology, acceptance
and accreditation;

-- To maintain the mandate of WIPO's Advisory Committee on Enforcement
within the limits of a forum for exchange of information on national
experience, excluding norm-setting activities. The ACE agenda of discussion
should also tackle how best to ensure the implementation of those provision=
s
in existing IP treaties, including TRIPS, that provide for exceptions and
limitations to the rights conferred;

-- To renew the process of the PCDA to further discuss and address all
issues related to a Development Agenda work-program for WIPO that may not
have been the subject of decision during the 2006 General-Assembly. Three
meetings will be organized until July 2007, which shall report back and
formulate recommendations to the 2007 General Assembly on actions to be
taken with regard to the pending proposals;

-- To take fully into account the interests of developing countries in the
process of approval of the program and budget of the WIPO and implement the
decision of the 41st General Assembly of WIPO: "(...) adjustments to the
Program and Budget for 2006-2007 shall be carried out in order to take into
account any programmatic and budgetary implications resulting from on-going
discussions on the WIPO Development Agenda and other issues". +