[Ip-health] Developing countries voice "development concerns" over WIPO

[Sangeeta]

TWN Info Service on Intellectual Property Issues
29 September 2009
Third World Network
www.twnside.org.sg

Developing countries voice "development concerns" over WIPO
Published in SUNS #6781 dated 29 September 2009

Geneva, 28 Sep (Sangeeta Shashikant) -- Several key developing countries
have voiced a variety of development-related concerns at the annual meetings
of the member states of the World Intellectual Property Organization (WIPO)
over the WIPO management as well as the organization's programmes and
activities.

These concerns surfaced in opening statements made by developing countries
during the first three days of the annual WIPO Assemblies, which is meeting
from 22 September to 1 October. A high-level Ministerial segment was also
held on the first two days of the Assemblies.

The opening statements of Ministers, Ambassadors and Heads of Delegation of
several key developing countries broadly stressed on the need for WIPO to
contribute towards achieving the Millennium Development Goals (MDGs); to
realign WIPO's mandate to the broader objectives of the UN; on conducting
impact assessments of WIPO's works; and the need for systemic changes in
WIPO that would ensure greater transparency of WIPO's activities,
accountability to its Members and refocus its culture to one with a
development orientation.

The opening statements also addressed several key issues that are before the
WIPO Assemblies for discussion. These include renewal of the mandate of the
Intergovernmental Committee (IGC) on Genetic Resources, Traditional
Knowledge and Folklore; the work-programmes of the Advisory Committee on
Enforcement (ACE); the Committee on Development and Intellectual Property
(CDIP); Patents Committee (SCP); Patent Cooperation Treaty (PCT) Working
Group; and the Copyright Committee (SCCR).

The Deputy Minister, Ministry of Trade and Industry of South Africa, B. M.
Ntuli, emphasized that WIPO should be guided by development-related
commitments and resolutions and contribute to the MDGs. As a standard setter
on intellectual property (IP), WIPO has a significant role in ensuring that
IP rules support development objectives. Ntuli added that international
treaties require balancing of Members' interests on a fair and equitable
basis. A one-sided approach undermines the value and benefit that countries
expect from participating in WIPO and that such treaties must have a
positive impact on developing countries.

The South African Minister stressed the importance of UN agencies dealing
with development issues to operate in a coherent manner. Despite the
conclusion of the WIPO Development Agenda (DA), Members should not be afraid
to revisit WIPO's mandate to properly align it with the broader objectives
of the UN. The Minister added that WIPO should play a meaningful role in
advising Members about the implications and dangers of renouncing rights
provided for by the TRIPS Agreement.

With respect to the IGC, Ntuli said that it was unfortunate that there was
no breakthrough on the matter. Ntuli supported renewal of the IGC's mandate
according to the African Group's proposal (which sought text-based
negotiations and international legally-binding instruments), adding that
there was a sentiment that the matter was not taken seriously by WIPO. In
relation to the ACE, Ntuli cautioned against focusing on enforcement issues.
The ACE should not be implemented in a manner detrimental to developing
countries or undermines their ability to advance pertinent development
issues.

The Minister for Industry, Trade and Marketing of Tanzania, Dr. Mary M.
Nagu, raised the issue of IP and access to medicines. She said that access
to patented and branded drugs, due to their associated costs, is beyond the
ability of the majority of those in need and that access to generic
antiretrovirals (ARVs) through the TRIPS Agreement's flexibilities is the
only available option. She also referred to the Doha Ministerial Declaration
that extended the transitional period for LDCs to implement the TRIPS
obligations on pharmaceuticals from 2006 to 2016, saying that this had an
advantage for the LDCs that have started manufacturing generic ARVs for
domestic use and export.

The Deputy Minister of Commerce, Trade and Industry of Zambia, Richard T.
Taima, said that the IGC deliberations demonstrated that some developed
countries were opposed to any effective means of protecting genetic
resources, traditional knowledge and folklore. He appealed for agreement on
a legally-binding framework on the matter.

On the road map for the PCT, he cautioned against harmonization of
substantive laws, mandatory effects of international search reports in the
national phase and legal presumption of validity, adding that the
Secretariat should clarify certain terms in the road map, especially the
general principles that were envisaged to guide the future functioning of
the PCT within its existing legal framework.

[The road map (PCT/WG/2/3) titled "The Future of the PCT" is a Secretariat
document. It sets out principles and actions for reform of the PCT system.
At the May meeting of the PCT Working Group, several developing countries
voiced concerns over harmonization of patent application, search and
examination procedures, which resulted in deferment of the consideration of
the road map. See SUNS #6698 dated 12 May 2009].

Ambassador Roberto Azevedo of Brazil said that it was in the best interest
of all Members to preserve the role of WIPO in setting IP rules, principles
and procedures, adding that initiatives outside WIPO lack legitimacy. Brazil
favoured "multilateral approaches", and was "ready to contribute in building
a work program that is balanced and capable of effectively addressing the
multiplicity of interests and social and economic realities represented" in
WIPO.

Referring to a statement made by Director-General Francis Gurry in his
opening remarks in which he asked "... what does a Member State get out of
being part of this Organization," Ambassador Azevedo said "Developing
countries ask themselves the same question."

The Brazilian envoy said that the answer is to be found in the DA, and
stressed that a key element to strengthening the role played by WIPO is to
make progress in the implementation of the DA. Adjustments will have to be
made in the very way in which WIPO has traditionally operated. In this
context, Ambassador Azevedo stressed that a change in the organisation's
culture will have to take place with the aim of not only providing for
greater transparency and accountability across WIPO, but also allowing
Member States to have a higher degree of control over the activities of the
organisation.

He also pointed to the need for a systemic approach leading to the
mainstreaming of the DA recommendations into the work of all WIPO's
Committees. Towards this end, Brazil supported the setting up of a system
for monitoring, coordinating, and assessing progress in the implementation
of the DA recommendations. One of the pillars of the DA is undoubtedly
capacity building. Brazil however believed that capacity building cannot be
confined to ensuring compliance; capacity building goes much beyond that; it
must enable developing countries to take advantage of the IP system.

To a large extent, the DA constitutes uncharted territory within WIPO,
thereby requiring Member States to adopt a path-finding mind-set. "We have
the challenge of learning on the run'. That is why methodologies used for
implementing and monitoring the Agenda must remain flexible and open to
adjustments as we make progress," Ambassador Azevedo said.

With respect to the IGC, the Brazilian envoy expressed hope that the IGC
will be given a fresh and strong mandate for the negotiation of
legally-binding instruments. On copyright matters, Brazil favoured further
comprehensive discussions on limitations and exceptions. Achieving progress
on talks about a legal instrument that makes access to education and culture
possible for the visually impaired will be the ultimate test for the
capacity of WIPO to live up to the UN values and to contribute to the
attainment of the MDG goals.

In relation to ACE, Ambassador Azevedo said that results in combating
infringement of IP can only be effective if they are sustained over time and
if they touch on all the dimensions of this complex question, and contribute
to the achievement of the objectives of the international system of IP as
defined by the TRIPS Agreement. Against this background, it is imperative,
for instance, to prevent abusive enforcement measures that do not respect
the principle of territoriality and that create barriers to the legitimate
trade of generic drugs, thereby de facto denying the right of access to
medicine, said Ambassador Azevedo. He also signalled that Brazil was open to
a balanced debate on the reform of the PCT.

Ambassador Hisham Badr of Egypt said that the discourse on IP has reached a
level of maturity that leads to an increasing awareness of the need to
approach IP from a comprehensive developmental perspective that links it
with prioritized public policy concerns. IP discussions are increasingly
based on objective foundations that acknowledge that demands for increased
levels of protection can sometimes result in negative effects. This fact is
most recently referred to in the UN report World Economic and Social Survey
2009, where it presents a critique of stronger levels of intellectual
property protection in its analysis of technology transfer and the climate
challenge, Ambassador Badr further said.

"It is naturally to be expected that this recent change in the nature of the
discourse on IP should be reflected in WIPO's work," he added. The adoption
of the DA and the first steps towards its implementation are but the
beginning of the path towards realizing this aim, he further said.

In this regard, Ambassador Badr raised three points:

(i) the need for a firm conviction that the linkage of IP to development and
implementation of the DA relate to all activities of WIPO including its
substantive norm-setting committees, and do not relate only to technical
assistance and capacity-building programmes. In this context, he referred to
the ongoing quest to conclude an international legally-binding treaty or
treaties for the protection of genetic resources, traditional knowledge and
folklore.

(ii) to consider institutional reform of WIPO that encompasses its governing
bodies and the various committees, including substantive committees, in a
comprehensive framework that reflects the active participation by developing
countries, and is guided by the principle of a member-driven Organization,
since WIPO is considered to be among the oldest Specialized Agencies of the
UN and as such, it is currently bequeathed with an institutional structure
that reflects conditions that existed several decades ago.

(iii) in the midst of increasing challenges facing the international
community, whether in development, or public health, or climate change,
there is a need to consider how IP policies can contribute to their
resolution, while ensuring that these policies do not contradict development
and public policy priorities. Therefore, WIPO should broaden its research
base in this area and adopt an objective and critical methodology, which
reflects the positive and negative impacts, as well as the opportunities and
constraints, that link IP policies with these global challenges.

Pakistan, in reference to the DA, pointed out that there needs to be a clear
distinction between the DA programmes and the regular technical cooperation
activities. This would entail a development orientation of policy and
analytical work of the organization and pro-development outcomes of the
normative discussions. The DA must not be reduced to an array of technical
assistance activities merely duplicating what is already being done, though
perhaps on a larger scale, Pakistan added.

Pakistan expressed concern over the "continued impasse" with regards to the
IGC, adding that this may have repercussions on other normative initiatives
in the organization. It also added support to renewing the mandate of the
IGC that supports text-based negotiations on a legally-binding instrument
within well-defined time frames.

On the issue of patents, Pakistan voiced the need to rectify shortcomings in
the patent system that stifle innovation and impose high costs on developing
countries in acquiring and developing new technologies. It added that while
WIPO aims for enhancing the efficiency of the patent regime, it should not
be at the cost of compromising available flexibilities and policy space and
that any such measures should not be rushed through and should be thoroughly
deliberated.

Pakistan was also supportive of progressing on exceptions and limitations in
the area of copyright to contribute to granting access to education and
scientific material. With regard to enforcement, Pakistan expressed concern
over the "one-dimensional approach" of stricter enforcement measures that
still characterizes the issue.

India stressed on the need to find resources for implementing the DA
recommendations. On the issue of the PCT, India said that it was essential
that procedural reforms respect the core of the PCT Treaty, which provides
for sovereign rights. It is also pertinent to keep in mind that WIPO Members
are at different levels of development, and thus efforts at streamlining and
harmonization of procedures across patent offices of the world need to
recognize the reality of countries being at different stages of development.
Developing countries need their national space and pace for evolving their
IP system and capacities, India added.

India also strongly supported the renewal of the IGC's mandate to undertake
text-based negotiations with the objective of developing a legally-binding
international instrument on genetic resources, traditional knowledge and
folklore. India also said that there are efforts to undermine the
flexibilities available under the TRIPS Agreement by stretching the
definition of counterfeiting to prevent the flow of affordable and genuine
generic drugs to the poor in the developing world which would adversely
affect the perception of legitimacy of the global IP framework.

On the issue of copyright, India said that there was a need to bring in
positive international obligations to facilitate access by disabled groups
to copyrighted material and supported moving forward with
internationally-binding obligations to protect the disabled.

On the issue of protection of broadcasting organizations, India said that it
would be willing to engage in any constructive discussion to achieve an
agreement on the nature, scope and object of protection of broadcasting
organizations.

Indonesia, with respect to the issue of PCT reform, expressed concern over
attempts towards de facto harmonization of patent law. Efforts towards
harmonization of substantive patent law should not be the focus of
discussion in that forum, it added.

Indonesia also expressed concern over proposals before the WIPO General
Assembly to develop a new Committee on Global IP Infrastructure. "We should
not too rush to establish the said committee without allocating sufficient
time and thorough exchange of views on the proposal, especially to take into
account the concerns of the many developing countries and the least
developed amongst them," said Indonesia. +