[Random-bits] Debate on WIPO Development Agenda

[James Packard Love]

http://www.cptech.org/blogs/ipdisputesinmedicine/2007/02/debate-on-=20
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 =20
about the WIPO Development Agenda (DA). The next round of =20
negotiations will be held in Geneva the week of February 19-23. =20
Invited to speak were several members of the US delegation, including =20=

Paul Salmon (USPTO), Bob Watts (US Department of State), Michael =20
Shapiro (USPTO) and Marla Poor (Library of Congress); and DC WIPO =20
representative, Suzanne Stoll. Thiru Balasubramaniam and Jamie Love =20
from KEI also spoke, followed by a lively discussion between the =20
audience and panel members.

KEI=92s Geneva representative, Thiru Balasubramaniam presented some =20
background on the DA, lending context to the discussions that =20
followed. In 2004, the WIPO General Assembly agreed to consider the =20
proposal to incorporate development into the core of WIPO=92s =20
activities in an effort to restore balance within existing IP =20
policies. The original DA proposal supported by 14 countries called =20
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 =20
assistance.

Subsequently, several more proposals were tabled by member countries =20
culminating in a total of 111 submissions. No consensus was reached =20
at the second inter-sessional intergovernmental meetings convened to =20
examine the proposals. Further, at the General Assembly in September-=20
October 2006, the Kyrgyz Republic introduced a proposal containing 40 =20=

recommendations (Doc PCDA/2/3) that were identical to the Chair=92s =20
conclusions that had been rejected at the second session. Following =20
this, it was decided to devote the upcoming third session to the =20
discussion of these 40 proposals grouped together under Annex A. =20
These proposals are generally considered to be less controversial as =20
they are relatively well accepted by members.

The remaining 71 proposals which include the core recommendations put =20=

forth by the Friends of Development constitute Annex B. Annex B is =20
scheduled to be discussed at the fourth session in June.

Proposals in each Annex were grouped under six common clusters: 1) =20
technical assistance and capacity building; 2) norm setting, =20
flexibilities, public policy and public domain; 3) technology =20
transfer, information and communication technology (ICT) and access =20
to knowledge; 4) assessments, evaluation and impact studies; 5) =20
institutional matters including mandate and governance and 6) other =20
issues. According to Thiru, this division of proposals under vertical =20=

silos is viewed critically by some because of the separation of the =20
proposals from their original contexts.

Speaking next as head of the US delegation, Paul Salmon confirmed =20
that the US has indicated its position on all 111 proposals and has =20
signaled its support on many of those included in Annex A.

Paul expressed optimism about the third session of the PCDA, saying =20
that after two and a half years of discussions it presented a good =20
opportunity to bring forward changes. Salmon suggested that the forum =20=

was important for achieving results with regards to proposals =20
enjoying emerging consensus but at the same time cautioned about the =20
slow pace such negotiations can take. The key is to be constructive =20
about reaching consensus while also maintaining realistic =20
expectations, he said.

Jamie Love of KEI commented that there had been progress on some =20
issues, as reflected in some of the 40 proposals in Annex A that had =20
received support from the US and the EC. He noted, however, that all =20
but one of the Annex A proposals were those that had received support =20=

from either the US or EC, and that when the Annex was first proposed =20
in 2006 at an earlier meeting, it was seen as an insulting and very =20
minimal response to the Friends of Development proposals. Many of the =20=

more far reaching reform proposals were at first ignored, and now =20
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 =20
that issues concerning the protection of the public domain will be =20
part of WIPO's mission -- an issue that had been disputed in a 2003 =20
debate over a WIPO meeting on open collaborative models for knowledge =20=

goods, and that WIPO will be doing more on the control of =20
anticompetitive practices, Love said.

There was debate back and forth between Rob Weissman (Essential =20
Action), Paul Salmon and Jamie Love about the degree to which WIPO =20
has helped countries protect the poor on issues concerning =20
flexibilities of the TRIPS. Paul Salmon was supportive of WIPO in =20
this respect, while Rob and Jamie were more critical. There was also =20
discussion of the need for more realism when it comes to enforcement. =20=

Developing countries would be more willing to enforce laws if the =20
laws addressed obvious issues such as affordability of patented or =20
copyrighted goods. Liberal limitations and exceptions to rights would =20=

in fact promote more respect for laws, in countries where incomes =20
were low. Rob Weissman of Essential Action urged the US to play a =20
stronger role in supporting improvements to WIPO=92s technical =20
assistance to countries on the use of flexibilities and competition =20
policy.

There was a general discussion about the degree to which the US and =20
European governments should pursue (a) very high levels of =20
intellectual property protection, or (b) a more nuanced and balanced =20
policy. According to Jamie, Germany was an example of a country that =20
was pushing for very strong intellectual property norms at WIPO, at a =20=

time when many were questioning the wisdom of such an approach. The =20
high rates of patenting in China and Korea suggest that 2017 might =20
look a lot different from 2007, and some countries may be encouraged =20
to embrace lower standards of patent quality (like the US), and use =20
patents as protectionist measures. Neither the EC nor the United =20
States, nor for that matter, any country, would benefit from such a =20
race to the bottom, in the longer run.

Brad Biddle (Intel Corporation) also pointed out that as higher =20
standards of IPR are implemented, corresponding limitations and =20
exceptions will also have to be created. Giving the example of =20
broadcasting, he explained that the economic value in creating these =20
exceptions is well recognized by the industry. Matt Schruers of CCIA =20
also advocated for finding a balance between creators=92 rights and =20
public access, noting that there was increasing consensus between =20
creators and society on these issues.

Much of the wealth created in the United States in recent years has =20
come from methods of sharing and using knowledge resources, rather =20
than restrictive IPR regimes, Jamie said. Companies like Google, =20
which are providing valuable services for the entire world and large =20
profits for themselves, cannot operate as global services without =20
some assurance that their core activities are legal. The EU =20
experience with database protection has hurt the EU's domestic tech =20
industry, not helped it, he said. Big corporations like Microsoft and =20=

Intel are now in favor of "patent reform" because they are the =20
targets of patent litigation. The United States is now the largest =20
purchaser of AIDS drugs in developing countries. There are indeed =20
endless areas where US and European taxpayers are being asked to pay =20
for drug purchases in developing countries. This is expensive and not =20=

sustainable unless you can deal with pricing abuses. The US was urged =20=

to abandon the strategy of framing issues in WIPO as "North South," =20
and to use WIPO for serious debates about intellectual property norms =20=

and practices.

Paul Ulhir of the National Academy of Science also suggested several =20
areas in which the US could take the lead in the international arena =20
by promoting such features of its domestic IP policy as the low =20
protection of information placed in the public domain and databases, =20
transparency in national policy making processes and the use of =20
permissive licensing.

The US delegation provided answers to the many questions raised such =20
as by Miriam Nisbet (American Library Association) about the PCDA =20
process and Susan Sell (George Washington University) about the =20
extent to which funding sources might constrain WIPO=92s activities and =20=

policy. Following the open discussion among representatives of the =20
government, academia, industry and consumer groups, many participants =20=

expressed interest in following the development agenda process. More =20
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"