[Ip-health] IP-Watch Inside views by Ahmed Abdel Latif - Linkages between the WIPO Development Agenda and the TRIPS Council

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Intellectual Property Watch

*13 March 2008*
 Inside Views: Linkages Between The WIPO Development Agenda And The TRIPS
Council



The piece is available on IP-Watch website at
http://www.ip-watch.org/weblog/index.php?p=3D959 and is also pasted below.

 By Ahmed Abdel Latif <http://www.ip-watch.org/weblog/index.php?p=3D959#bio=
>

This week's TRIPS Council meetings provide a timely opportunity to reflect
on the linkages between the work of the Council and the ongoing WIPO
Development Agenda process, which entered an implementation phase with the
first meeting, last week, of WIPO's new Committee on Development and
Intellectual Property (CDIP). Just as the Doha Declaration on TRIPS and
Public Health (2001) had a significance that went beyond the WTO context, a
number of the WIPO Development Agenda recommendations - in areas such as
technical assistance, norm setting, technology transfer and enforcement -
have implications beyond WIPO and a particular bearing for the work of the
TRIPS Council.

The WIPO and WTO are linked historically and institutionally in the area of
intellectual property. It is important to recall, in this regard, that the
WIPO Development Agenda was aimed at integrating the development dimension
in WIPO's activities in view of the centrality of this dimension in the UN
system at large and the particular importance it had acquired in other
relevant fora such as the WTO under the Doha Development Agenda. It also
sought to address concerns regarding the extent to which WIPO's technical
assistance integrated the flexibilities in the TRIPS agreement as reaffirme=
d
by the Doha Declaration on TRIPS and Public Health. The balanced wording of
the Doha Declaration reflected the approach to IP protection and public
interest objectives, which the proponents of the WIPO Development Agenda,
were seeking to inject into WIPO and mainstream in its activities.

After two years of intense deliberations, the WIPO General Assembly adopted
last year by consensus 45 recommendations to advance the Development Agenda
deliberations. Nineteen of these recommendations were identified for
immediate implementation. Importantly, three of the WIPO Development Agenda
recommendations make direct references to the WTO and the TRIPS agreement.

Recommendation 14 stipulates that "within the framework of the agreement
between WIPO and the WTO, WIPO shall make available advice to developing
countries and LDCs [least developed countries], on the implementation and
operation of the rights and obligations and the understanding and use of
flexibilities contained in the TRIPS agreement." Recommendation 40 requests
WIPO "to intensify its cooperation on IP related issues with UN agencies,
according to member States orientation, =85 and other relevant internationa=
l
organisations, especially WTO in order to strengthen the coordination for
maximum efficiency in undertaking development programs." Recommendation 45
on enforcement points to approaching "intellectual property enforcement in
the context of broader societal interests and especially
development-oriented concerns" making reference to Article 7 of the TRIPS
agreement.

The WIPO Development Agenda recommendations are particularly relevant to
ongoing deliberations at the TRIPS Council on IP-related technical
assistance and technology transfer. With a few exceptions, developing
countries have not systematically addressed the extent to which technical
assistance activities reported by developed countries under Article 67 are
truly "development oriented" and contribute to a balanced implementation of
the TRIPS agreement in light of its objectives and principles in articles 7
and 8. Indeed, Article 67 provided that "such cooperation shall include
assistance in the preparation of laws and regulations on the protection and
enforcement of intellectual property rights as well as on the prevention of
their abuse=85"

Thus technical cooperation and capacity building activities should not be
limited to the implementation of TRIPS obligations, but should equally focu=
s
on preventing abuses of IPRs and on the rights provided to countries in the
TRIPS agreement, including how to make full use of the flexibilities
contained in the agreement as reaffirmed by the Doha Declaration on the
TRIPS Agreement and Public Health.

Similarly, there has as yet been too little scrutiny of developed country
efforts to fulfil their obligations under Article 66.2 of the TRIPS
agreement to provide incentives to enterprises and institutions in their
territories for the purpose of promoting and encouraging technology transfe=
r
to least-developed country members in order to enable them to create a soun=
d
and viable technological base. In reality, many of the activities that
developed countries present in their reports on their actions to fulfil
Article 66.2 are training and capacity building activities, which do not
necessarily lead to transfer of technology or fulfil Article
66.2requirements in this respect.

Alongside their ongoing efforts to actively engage in the implementation
process related to the WIPO Development Agenda, countries should also
consider bringing the spirit of many of its recommendations to the TRIPS
Council to inform and guide their deliberations. In so doing, they would
signal the need for a departure from the "business as usual approach" in
addressing a number of issues on the Council's agenda. Efforts by developin=
g
countries to achieve a more balance and development friendly global IP
architecture will be more effective if they ensure that their achievements
in the context of WIPO and the TRIPS Council are mutually reinforcing.

 *Ahmed Abdel Latif is the Programme Manager for IP and Sustainable
Development at the International Centre for Trade and Sustainable
Development (ICTSD). The views expressed in this article are the personal
views of the author and do not necessarily reflect the views of ICTSD.*