[Ip-health] IP-Watch (Monthly Edition): WIPO Development Agenda Negotiation Surges Ahead

[Thiru Balasubramaniam]

<SNIP>

=93What we got was meaningful and balanced,=94 a Brazilian official said
afterwards. =93This bodes well for similar progress to be made in the
next meeting.=94 Brazil was one of the originators of the effort to bring
a greater development focus into WIPO, which started two and a half
years ago.

=93We=92re satisfied we achieved a concrete resolution after two and a half
years,=94 a US official said afterward. He attributed the outcome to
increased flexibility on the part of the proponents of WIPO reform.
This outcome fits with the United States=92 preference for =93incremental=
=94
progress on a Development Agenda, he said.


<SNIP>

While Clarke was widely praised for his effectiveness, one official
said afterward that this approach would not work with most WIPO meeting
chairs. Clarke, who has experience from the private sector, =93made
everyone focus on the bottom line,=94 he said. It is unclear whether
Clarke will chair the June meeting.

<SNIP>

Among the hot issues were policies on anti-competitive practices, the
public domain, transfer of technology and flexibilities in
international agreements.

Chile said that a strong public domain is not in conflict with
intellectual property rights as more IP depends on a sound public
domain. Many developed countries said they could agree to WIPO=92s role
in preserving the public domain, sources said.

<SNIP>

NGO Knowledge Ecology International (KEI) Director James Love
highlighted the benefits that have risen from the Internet and the
human genome project being accessible to the public. He said an initial
public domain investments was part of the knowledge ecosystem that
could fuel the IP system.

<SNIP>

There also was disagreement on whether WIPO should get involved in
competition policy by promoting measures that would help countries
combat IP-related anti-competitive practices. Chile, Brazil and China
were among the supporters. The United States said this belongs in other
agencies, pointing out that there are no fully agreed norms on
international competition policy, a source said. A developed country
official told Intellectual Property Watch that WIPO studies and
analysis of the issue would be welcome but there are concerns about
=93opening a Pandora=92s box=94 that would undermine the entire concept of
IP.

<SNIP>

KEI Geneva Representative Thiru Balasubramaniam praised Clarke=92s work
in =93rejuvenating hopes that WIPO can mainstream public interest
concerns into its core mandate.=94 He also praised Pakistan, Chile,
India, Brazil, South Africa and the United States for their cooperative
spirit. =93It was refreshing to hear WIPO member states laud the value of
the public domain,=94 he said. =93Crunch time begins in June where
proposals detailing an elaboration of a Treaty on Access to Knowledge
and a Medical R&D Treaty will be discussed.=94


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

http://www.ip-watch.org/reporter.php?res=3D1024_ff&print=3D0

March 2007         Monthly Edition        Vol. 4, No. 3

WIPO Development Agenda Negotiation Surges Ahead

By William New and Tove Iren S. Gerhardsen

A preliminary agreement has been reached on a first set of proposals
aimed at better balancing the interests of developing and developed
countries at the World Intellectual Property Organization.

WIPO members negotiated on 40 proposals on development in the 19-23
February Provisional Committee on Proposals related to a WIPO
Development Agenda (PCDA). By week=92s end, they had compressed them into
24 agreed proposals [To read the final agreement, see www.ip-watch.org,
23 February 2007.] The next and final PCDA meeting (and the last of two
=93special sessions=94) for this year will be held on 11-15 June, and
another 71 proposals will be addressed.

=93What we got was meaningful and balanced,=94 a Brazilian official said
afterwards. =93This bodes well for similar progress to be made in the
next meeting.=94 Brazil was one of the originators of the effort to bring
a greater development focus into WIPO, which started two and a half
years ago.

=93We=92re satisfied we achieved a concrete resolution after two and a half
years,=94 a US official said afterward. He attributed the outcome to
increased flexibility on the part of the proponents of WIPO reform.
This outcome fits with the United States=92 preference for =93incremental=
=94
progress on a Development Agenda, he said.

Among the proposals are a variety of technical assistance approaches,
and to: reinforce the participatory and member-driven nature of WIPO
rulemaking; urge preservation and study of the public domain; expand
WIPO=92s involvement in technology transfer, information and
communication technologies (including expanded activities in addressing
the digital divide) and access to knowledge; require assessments,
evaluation and impact studies; and mildly reform WIPO=92s mandate and
governance.

The meeting also approved a proposal for WIPO =93to approach intellectual
property enforcement in the context of broader societal interests and
especially development-oriented concerns, with a view that =91the
protection and enforcement of intellectual property rights should
contribute to the promotion of technological innovation and to the
transfer and dissemination of technology, to the mutual advantage of
producers and users of technological knowledge and in a manner
conducive to social and economic welfare, and to a balance of rights
and obligations=92, in accordance with Article 7 of the TRIPS Agreement.=94
TRIPS is the World Trade Organization Agreement on Trade-Related
Aspects of Intellectual Property Rights.

The remaining 71 proposals will be more difficult to reach agreement
on, participants said. It was agreed that the next meeting will focus
only on the remaining proposals, and that outcome will be combined with
this one and passed on to the WIPO General Assembly, which meets
annually in September. The assembly would then take decisions on how to
proceed.

The June meeting involves bigger reform issues such as ensuring that
WIPO=92s legislative advice to developing and least-developed countries
takes into account relevant flexibilities, reflecting the public
interest in WIPO=92s work, and ensuring that WIPO treaties have preserved
space for public policy formation. The chair, Ambassador Trevor Clarke
of Barbados, said he suggested to coordinators that they meet with him
before the June meeting. By the meeting adjournment only the English
language proposal text was finished. The WIPO secretariat will
circulate a draft report of the meeting by 5 April and members will
have until 20 April to comment on it.

Clarke suggested that the General Assembly mandate does not require
that all items in the June batch be completed, as the committee can
make a recommendation for =93continuing the work.=94 The Development Agenda
=93is about getting WIPO to continue doing what it does and to do some
things,=94 Clarke said. An official from a large developing country said
the approved proposals would be =93fleshed out=94 later, presumably under
direction of the General Assembly.

Background on Proposals

The proposal for a WIPO Development Agenda began with Argentina and
Brazil in 2004, and has been formally supported by 13 other Friends of
Development countries in meetings on the issue since then. Most of the
more substantive proposals of the Friends are in the second batch
awaiting negotiators in June.

The weeklong PCDA negotiations were assisted by an informal meeting
hosted by India the week before. Also, General Assembly Chair
Ambassador Enrique Manalo of the Philippines helped the committee
beforehand by grouping the 111 proposals into clusters by themes. The
special sessions of the PCDA were decided by the WIPO General Assembly
on 25 September =96 3 October 2006. At this meeting, Manalo was asked to
narrow down the 111 proposals to avoid repetition, divide them into
=93actionable=94 versus =93declarations of general principles and
objectives,=94 and to find out which proposals related to current work at
WIPO, Manalo said. The WIPO secretariat helped out on the third task, a
source said.

Manalo told Intellectual Property Watch that based on the document
endorsed by members and the implicit understanding that 40 (Annex A) of
the proposals are more ripe than the remaining ones (Annex B), he had
indicated which belonged to the respective three categories described
above. He said this is =93purely my own interpretation.=94 The final
version of the proposals dropped the practice of stating which are
=93actionable.=94

Argentinian Ambassador Alberto Dumont told Intellectual Property Watch
before the meeting that the chair=92s document should be a useful working
paper as the chair had consulted member states in preparing it. But,
the ambassador said, the third column of the chair=92s matrix, on WIPO=92s
activities, was more subjective as it lists the facts on what WIPO is
doing in the different areas, but leaves the question whether this
fulfilled what the =93demandeurs=94 of the various proposals had had in
mind. He said the question was not if WIPO does it but =93how they are
doing it,=94 adding that this was about WIPO as an institution, not only
the secretariat.

At the meeting, Clarke had each WIPO regional group plus the
developed-country group take a cluster. The coordinators of each group
held lengthy closed consultations with other members during the week
and gradually refined the proposals.

The coordinating countries were: The African Group (chaired by Algeria)
was in charge of technical assistance and capacity building (cluster
A); Kyrgyzstan on norm-setting, flexibilities, public policy and public
domain (cluster B); the Asian group (chaired by Bangladesh) and China
on technology transfer, information and communication technology and
access to knowledge (cluster C); the Central European and Baltic States
(chaired by Poland) on assessments, evaluation and impact studies
(cluster D); group B of developed countries (chaired by Italy,
vice-chaired by the United States) on institutional matters including
mandate and governance (cluster E), and the chair did cluster F (one
proposal). The coordinators of each regional group took the lead for
the groups in this effort.

The draft texts were discussed informally, and Clarke also met with the
regional coordinators =93plus two=94 (meaning two countries they wished to
bring along) as well as the countries that had put forward the original
proposal. These closed meetings took place =93upstairs,=94 referring to
WIPO=92s high-rising headquarters.

Kyrgyzstan=92s voluntary involvement in the norm-setting issues, which
are at the core of the Friends of Development proposals, caused a
reaction, sources said. Kyrgyzstan was the source of many of the 40
proposals under consideration, and has been seen by some as adversarial
to developing country interests in this process, two sources said.
Developing country concern about its coordination disappeared by week=92s
end.

While most cluster documents apparently went through two or three
versions, the African Group=92s cluster had nine. The Algerian
coordinator for the group said afterward that the group had nearly 80
percent of all of the technical assistance proposals in the total 111
proposals, and also was the first cluster to start work. He noted the
accomplishment of removing all of the many bracketed, or unresolved,
sections of text.

Many proposals were agreed after being made more acceptable to all
sides. Some items during the week were consolidated or removed either
because they were seen as belonging to the next meeting=92s batch, or
because they were seen as outside the mandate of the committee.

While Clarke was widely praised for his effectiveness, one official
said afterward that this approach would not work with most WIPO meeting
chairs. Clarke, who has experience from the private sector, =93made
everyone focus on the bottom line,=94 he said. It is unclear whether
Clarke will chair the June meeting.

Key Issues

Among the hot issues were policies on anti-competitive practices, the
public domain, transfer of technology and flexibilities in
international agreements.

Chile said that a strong public domain is not in conflict with
intellectual property rights as more IP depends on a sound public
domain. Many developed countries said they could agree to WIPO=92s role
in preserving the public domain, sources said.

In the plenary on 22 February, Colombia took issue with the inclusion
of language on the protection of the public domain in the text on
Cluster B, and expressed its reservation. Nigeria also showed some
resistance on this issue. The final text states: =93Consider the
preservation of the public domain within WIPO=92s normative processes and
deepen the analysis of the implications and benefits of a rich and
accessible public domain.=94

A number of nongovernmental groups in attendance had strong opinions on
the public domain issue. =93Protecting the public domain does not imply
legal protection but a general protection against ever encroaching IP
rights created by the current trend for ever upward harmonisation of
the terms and scope of patent, trademark, copyright, moral and related
rights,=94 said the International Federation of Library Associations and
Institutions, the Library Copyright Alliance and the Electronic
Information for Libraries in a statement.

NGO Knowledge Ecology International (KEI) Director James Love
highlighted the benefits that have risen from the Internet and the
human genome project being accessible to the public. He said an initial
public domain investments was part of the knowledge ecosystem that
could fuel the IP system.

Separately, Uruguay prepared a paper calling for the inclusion of the
recognition of human rights at WIPO. The document highlights United
Nations agreements on human rights, including children=92s right to
education and freedom of expression, authors=92 rights, and the need for
balance between intellectual property rights and the right to
participate in culture and gain the benefits of scientific progress.

On technology transfer, South Africa said technical assistance in
developing countries too often focuses more on protection and not
enough on technology transfer. Brazil supported a WIPO-led exploration
of initiatives and reforms to ensure the transfer of technology fully
benefits developing countries. Canada said this has to be done by the
private sector, and the European Union and the United States opposed
the word =93ensure=94 in the proposal, sources said. The United States
warned against overlapping work with WTO.

There also was disagreement on whether WIPO should get involved in
competition policy by promoting measures that would help countries
combat IP-related anti-competitive practices. Chile, Brazil and China
were among the supporters. The United States said this belongs in other
agencies, pointing out that there are no fully agreed norms on
international competition policy, a source said. A developed country
official told Intellectual Property Watch that WIPO studies and
analysis of the issue would be welcome but there are concerns about
=93opening a Pandora=92s box=94 that would undermine the entire concept of
IP.

The final language on competition, related to WIPO=92s technical
assistance, reads: =93Promote measures that will help countries deal with
IP related anti-competitive practices, by providing technical
cooperation to developing countries, especially least developed
countries, at their request, in order to better understand the
interface between intellectual property rights and competition
policies.=94

KEI Geneva Representative Thiru Balasubramaniam praised Clarke=92s work
in =93rejuvenating hopes that WIPO can mainstream public interest
concerns into its core mandate.=94 He also praised Pakistan, Chile,
India, Brazil, South Africa and the United States for their cooperative
spirit. =93It was refreshing to hear WIPO member states laud the value of
the public domain,=94 he said. =93Crunch time begins in June where
proposals detailing an elaboration of a Treaty on Access to Knowledge
and a Medical R&D Treaty will be discussed.=94

India Preparatory Meeting

On 5-7 February, an informal preparatory meeting was hosted by India as
a follow-up to an earlier proposal it made at WIPO, a source said. A
participant at the meeting told Intellectual Property Watch that this
was not a WIPO meeting per se, but WIPO had supported it. Three WIPO
officials attended, sources said, and briefed participants on the
development agenda.

The participant said that a document had been produced but there was
=93no official outcome=94 and it would have no status in the overall
development agenda talks. The meeting had attempted to streamline and
compress 40 of the proposals (Annex A), resulting in some 20 proposals.
India did not comment on the meeting. Participating countries included:
Algeria, Argentina, Australia, Azerbaijan, Bangladesh, Barbados,
Belarus, Brazil, Canada, Colombia, Indonesia, Iran, Mexico, Morocco,
Nigeria, Poland, Romania, Switzerland, United Kingdom and the United
States.

---------------------------------
Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
voice +41.22.791.6727
fax +41.22.723.2988
mobile +41 76 508 0997
thiru@keionline.org