[Ip-health] Debate on WIPO Development Agenda

[James Packard Love]

http://www.cptech.org/blogs/ipdisputesinmedicine/2007/02/debate-on-
wipo-development-agenda.html

IP Disputes in Medicine

Friday, February 16, 2007
Debate on WIPO Development Agenda
by Malini Aisola

On February 9, 2007 KEI hosted a brownbag lunch discussion to talk
about the WIPO Development Agenda (DA). The next round of
negotiations will be held in Geneva the week of February 19-23.
Invited to speak were several members of the US delegation, including
Paul Salmon (USPTO), Bob Watts (US Department of State), Michael
Shapiro (USPTO) and Marla Poor (Library of Congress); and DC WIPO
representative, Suzanne Stoll. Thiru Balasubramaniam and Jamie Love
from KEI also spoke, followed by a lively discussion between the
audience and panel members.

KEI=92s Geneva representative, Thiru Balasubramaniam presented some
background on the DA, lending context to the discussions that
followed. In 2004, the WIPO General Assembly agreed to consider the
proposal to incorporate development into the core of WIPO=92s
activities in an effort to restore balance within existing IP
policies. The original DA proposal supported by 14 countries called
for the:

a. reappraisal of WIPO=92s norm setting activities,
b. facilitation of technology transfer,
c. evaluation of intellectual property enforcement, and
d. promotion of development-oriented technical co-operation and
assistance.

Subsequently, several more proposals were tabled by member countries
culminating in a total of 111 submissions. No consensus was reached
at the second inter-sessional intergovernmental meetings convened to
examine the proposals. Further, at the General Assembly in September-
October 2006, the Kyrgyz Republic introduced a proposal containing 40
recommendations (Doc PCDA/2/3) that were identical to the Chair=92s
conclusions that had been rejected at the second session. Following
this, it was decided to devote the upcoming third session to the
discussion of these 40 proposals grouped together under Annex A.
These proposals are generally considered to be less controversial as
they are relatively well accepted by members.

The remaining 71 proposals which include the core recommendations put
forth by the Friends of Development constitute Annex B. Annex B is
scheduled to be discussed at the fourth session in June.

Proposals in each Annex were grouped under six common clusters: 1)
technical assistance and capacity building; 2) norm setting,
flexibilities, public policy and public domain; 3) technology
transfer, information and communication technology (ICT) and access
to knowledge; 4) assessments, evaluation and impact studies; 5)
institutional matters including mandate and governance and 6) other
issues. According to Thiru, this division of proposals under vertical
silos is viewed critically by some because of the separation of the
proposals from their original contexts.

Speaking next as head of the US delegation, Paul Salmon confirmed
that the US has indicated its position on all 111 proposals and has
signaled its support on many of those included in Annex A.

Paul expressed optimism about the third session of the PCDA, saying
that after two and a half years of discussions it presented a good
opportunity to bring forward changes. Salmon suggested that the forum
was important for achieving results with regards to proposals
enjoying emerging consensus but at the same time cautioned about the
slow pace such negotiations can take. The key is to be constructive
about reaching consensus while also maintaining realistic
expectations, he said.

Jamie Love of KEI commented that there had been progress on some
issues, as reflected in some of the 40 proposals in Annex A that had
received support from the US and the EC. He noted, however, that all
but one of the Annex A proposals were those that had received support
from either the US or EC, and that when the Annex was first proposed
in 2006 at an earlier meeting, it was seen as an insulting and very
minimal response to the Friends of Development proposals. Many of the
more far reaching reform proposals were at first ignored, and now
have been relegated to the Annex B, which will be discussed in June.

That said, the February meeting will be useful, as WIPO will agree
that issues concerning the protection of the public domain will be
part of WIPO's mission -- an issue that had been disputed in a 2003
debate over a WIPO meeting on open collaborative models for knowledge
goods, and that WIPO will be doing more on the control of
anticompetitive practices, Love said.

There was debate back and forth between Rob Weissman (Essential
Action), Paul Salmon and Jamie Love about the degree to which WIPO
has helped countries protect the poor on issues concerning
flexibilities of the TRIPS. Paul Salmon was supportive of WIPO in
this respect, while Rob and Jamie were more critical. There was also
discussion of the need for more realism when it comes to enforcement.
Developing countries would be more willing to enforce laws if the
laws addressed obvious issues such as affordability of patented or
copyrighted goods. Liberal limitations and exceptions to rights would
in fact promote more respect for laws, in countries where incomes
were low. Rob Weissman of Essential Action urged the US to play a
stronger role in supporting improvements to WIPO=92s technical
assistance to countries on the use of flexibilities and competition
policy.

There was a general discussion about the degree to which the US and
European governments should pursue (a) very high levels of
intellectual property protection, or (b) a more nuanced and balanced
policy. According to Jamie, Germany was an example of a country that
was pushing for very strong intellectual property norms at WIPO, at a
time when many were questioning the wisdom of such an approach. The
high rates of patenting in China and Korea suggest that 2017 might
look a lot different from 2007, and some countries may be encouraged
to embrace lower standards of patent quality (like the US), and use
patents as protectionist measures. Neither the EC nor the United
States, nor for that matter, any country, would benefit from such a
race to the bottom, in the longer run.

Brad Biddle (Intel Corporation) also pointed out that as higher
standards of IPR are implemented, corresponding limitations and
exceptions will also have to be created. Giving the example of
broadcasting, he explained that the economic value in creating these
exceptions is well recognized by the industry. Matt Schruers of CCIA
also advocated for finding a balance between creators=92 rights and
public access, noting that there was increasing consensus between
creators and society on these issues.

Much of the wealth created in the United States in recent years has
come from methods of sharing and using knowledge resources, rather
than restrictive IPR regimes, Jamie said. Companies like Google,
which are providing valuable services for the entire world and large
profits for themselves, cannot operate as global services without
some assurance that their core activities are legal. The EU
experience with database protection has hurt the EU's domestic tech
industry, not helped it, he said. Big corporations like Microsoft and
Intel are now in favor of "patent reform" because they are the
targets of patent litigation. The United States is now the largest
purchaser of AIDS drugs in developing countries. There are indeed
endless areas where US and European taxpayers are being asked to pay
for drug purchases in developing countries. This is expensive and not
sustainable unless you can deal with pricing abuses. The US was urged
to abandon the strategy of framing issues in WIPO as "North South,"
and to use WIPO for serious debates about intellectual property norms
and practices.

Paul Ulhir of the National Academy of Science also suggested several
areas in which the US could take the lead in the international arena
by promoting such features of its domestic IP policy as the low
protection of information placed in the public domain and databases,
transparency in national policy making processes and the use of
permissive licensing.

The US delegation provided answers to the many questions raised such
as by Miriam Nisbet (American Library Association) about the PCDA
process and Susan Sell (George Washington University) about the
extent to which funding sources might constrain WIPO=92s activities and
policy. Following the open discussion among representatives of the
government, academia, industry and consumer groups, many participants
expressed interest in following the development agenda process. More
updates from the next PCDA to come soon.

posted by Malini Aisola

----------------------------------------------
James Packard Love
Knowledge Ecology International
http://www.keionline.org
james.love@keionline.org
Washington, DC +1.202.332.2670

"If everyone thinks the same: No one thinks." Bill Walton"