[Commons-Law] WIPO - Group of Friends of Development

[Pedro de Paranagua Moniz]

Fresh news re. the proposal submitted yesterday, led by Brazil.

rgds,

Pedro

Pedro de Paranaguá Moniz
Masters of Law (LL.M.) candidate, class of 2004/2005
Queen Mary, University of London

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PROPOSAL TO ESTABLISH A DEVELOPMENT AGENDA
FOR THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO):
An Elaboration of Issues Raised in Document WO/GA/31/11

Submission by the Group of Friends of Development

I. INTRODUCTION: PROMOTING DEVELOPMENT AND ACCESS TO KNOWLEDGE FOR ALL
During the 31st Session of the WIPO General Assembly (September 27 to
October 5, 2004), the delegations of Argentina, Bolivia, Brazil, Cuba,
Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone,
South Africa, Tanzania and Venezuela co-sponsored a proposal to
establish a "Development Agenda" for the World Intellectual Property
Organization (tabled as Document WO/GA/31/11). The present submission by
the Group of Friends of Development seeks further to elaborate four
different sections of document WO/GA/31/11, with a view to incorporating
the development dimension into WIPO´s work. The four issues dealt with
in this new submission are, namely: WIPO's mandate and governance;
norm-setting; technical cooperation; and transfer of technology. This
document is intended only as a further contribution to the debate on the
establishment of a "development agenda" for WIPO. It is not meant to be
exhaustive of all possible initiatives that may be undertaken and issues
that may be addressed under that aegis. The Friends of Development
reserve the right to make additional contributions to the debate as
discussions continue. Future documents may further elaborate the
proposals contained in the present submission, or address new issues.
2. The basic concern of the Group of Friends of Development is to
ensure that WIPO activities and intellectual property discussions are
driven towards development-oriented results. As pointed out by document
WO/GA/31/11, several international organizations have recognized that
much more needs to be done to reach effective results that meet the
challenges of development. Leading this process, the United Nations
adopted the Millennium Development Goals, which established a firm
commitment by the international community to address the significant
problems that affect developing countries and LDCs. The Programme of
Action for the Least Developed Countries for the Decade 2001 2010, the
Monterey Consensus, the Johannesburg Declaration on Sustainable
Development and the Plan of Implementation agreed at the World Summit on
Sustainable Development, the Declaration of Principles and the Plan of
Action of the first phase of the World Summit on the Information
Society, and the Sao Paulo Consensus adopted at UNCTAD XI, have all
placed development at the heart of their concerns and actions. This has
also been the case in the context of the current Doha round of
multilateral trade negotiations of the World Trade Organization (the
"Doha Development Agenda"), which was launched at the WTO's 4th
Ministerial Conference, in November 2001.
3. The aforementioned examples point to a trend towards adopting
development-oriented agendas in international fora, in response to the
widespread perception that the international debate must tackle this
issue. The proposal to establish a "Development Agenda" for WIPO submits
that the Organization's work should reflect this trend, by bringing the
development dimension into all its discussions and activities. The basic
proposal of the "Development Agenda" is that development should be a
central dimension in any negotiation involving IP systems.
4. Experience demonstrates that WIPO has concentrated its efforts in
the diffusion of standardized approaches to IP policies that assume,
from an uncritical standpoint, that development follows suit as
intellectual property rights protection is strengthened. Current
worldwide debate questioning the appropriateness of such an approach has
not been reflected in WIPO's work. Rather, discussions in WIPO have
overlooked the importance of a systematic assessment of the implications
of increased and standardized IPR protection in terms of access to and
diffusion of science, technology and related knowledge and know-how,
especially for LDCs and developing countries.
5. The proposal for the establishment of a "Development Agenda" is
also based on the premise that development concerns should be given
emphasis in WIPO activities, so that the Organization may comply with
its UN mandate. One of the intentions of the "Development Agenda",
therefore, is to promote a deeper reflection on the development
implications of current and new approaches to different IP policy
choices and international norm setting, as well as a more accurate and
pervasive discussion on the consequences of their adoption by countries
at different stages of social, economic and technological development.
It is important to promote a critical examination of the implications
for developing countries of the adoption of increased IPR protection,
rather than seek to approach this highly controversial issue as if it
were governed by absolute truths, solely under the one dimensional
perspective of the private rights holders, ignoring the broader public
interest.
6. Accordingly, while the "Development Agenda" initiative recognizes
that intellectual property is relevant to the process of building
technological capacity, it also draws attention to the importance of
public interest flexibilities provided for by the IP system itself and
the role these flexibilities might play in fostering
development-oriented policies. Although a globalized economy poses
overwhelming challenges for policy-making, such as the tendency towards
uniformity, it is important to bear in mind the serious disparities that
continue to exist in the levels of human, economic and technological
development among different States. States at differing levels of
development face different challenges and have different needs. This
fact should always be borne in mind in the realm of intellectual
property policy-making.
7. From such a perspective, as pointed out in document WO/GA/31/11,
intellectual property should be regarded not as an end in itself, but as
a means for promoting the public interest, innovation, and access to
science, technology and the promotion of diverse national creative
industries - in order to ensure material progress and welfare in the
long run. Promotion of intellectual property protection alone is not
sufficient if unaccompanied by policies that respond to the specific
development needs of each country.
8. As WIPO holds an important position in the field of IP issues, the
Organization is expected to be guided, in all its activities, by this
wider perspective in which IPRs are regarded as instruments that could
facilitate social and economic gains for all countries, provided that
different national circumstances are properly taken into account.
9. It is incumbent upon WIPO, therefore, to effectively incorporate
development promotion as one of its main goals, as already foreseen by
the UN-WIPO Agreement. This brings to the forefront, inter alia, the
importance of: weighing the costs and benefits generated by IPR
protection; safeguarding public interest flexibilities in both ongoing
and future negotiations taking place in the Organization; addressing the
issue of technical cooperation from a broader perspective – in which
countries are helped to frame IP legislation that responds to their
specific needs; guaranteeing wider transparency and participation in the
discussions; and ensuring that the IP system effectively fosters
innovation and technological development. The balance between the public
interest and those of rights holders, as well as the balance between the
interests of the scientific community and those of the technology and IP
based industries should be struck not only in developed countries but
also within the specific contexts and conditions of each developing
country that is a member of WIPO. This is why IP agreements and minimum
international standards should be fine-tuned to address different levels
of development of member countries, their respective social needs and
industrial challenges as well as their capacity to participate in and
benefit from the IP system through generation of patents and IPs
resulting from the efforts of their own national communities and
industries. These concerns are of a cross-cutting nature, since they
relate to all WIPO activities. This highlights the importance of dealing
with them in all WIPO fora.
10. The Friends of Development attach importance to the role of
intellectual property in the path towards development. In order to
ensure the credibility of the IP system, however, more has to be done in
order to ensure that peoples all over the world have access to knowledge
and technological development. We believe WIPO could have a new role as
a relevant actor in this context if it incorporates the development
dimension into its work.


II. ELEMENTS FOR THE REVIEW OF THE MANDATE AND GOVERNANCE OF WIPO

11. Document WO/GA/31/11 noted that WIPO as a member of the United
Nations (U.N.) family should be guided by the development goals that the
U.N has set for itself, such as the Millennium Development Goals (MDGs),
and that development concerns should be fully incorporated into all WIPO
programmes and activities. In the proposal, the co-sponsors further
pointed out that WIPO's role is not to be limited to the promotion of
intellectual property protection.

12. The proposal that WIPO should be guided by the broader goals of the
UN system is a response to and reflects recent developments in many
different international fora, where it has been recognized that
intellectual property protection has serious cross-cutting implications
for several different areas of public policy, including education,
public health, nutrition, the environment, cultural diversity and the
promotion of science and technological development more generally. In
this regard, the adoption of the Doha Declaration on the TRIPS Agreement
and Public Health at the 4th Ministerial Conference of the World Trade
Organization (WTO) represented a crucial milestone, whereupon the
international community recognized that TRIPS, as an international
instrument for the protection of intellectual property, should always
operate in a manner supportive of the public health objectives of all
countries. Relevant developments have taken place in other international
fora as well. For example, the "Sao Paulo Consensus", adopted by UNCTAD
XI, enshrined the concept of "policy space" in the context of economic
policy-making, underscoring its relevance to the pursuit of the
development objectives of developing countries and LDCs.

13. Now more than ever before, it has become clear that in the
increasingly global, knowledge economy, access to knowledge and
technology is indispensable for social and economic development and for
the well-being of peoples in all countries. Consequently, any policies
and international norm-setting, particularly in relation to intellectual
property protection, which may have an impact on access to knowledge and
technological development, pose a serious development concern for
developing countries and LDCs.


II.1. WIPO'S U.N. MANDATE: ADDRESSING POSSIBLE IMPEDIMENTS TO ITS
EFFECTIVE IMPLEMENTATION

14. Given the cross-cutting implications of intellectual property
protection, in particular for developing countries and LDCs, as well as
consumers of new knowledge and technology in both the North and the
South, discussions on intellectual property should not and cannot be
pursued in a vacuum. In effect, because IP protection has an impact on
different areas of public policy of such vital importance to social and
cultural development, immediate steps should be taken to ensure the full
implementation and monitoring of WIPO's U.N. mandate, by clarifying the
mandate of the Organization and by strengthening its Member-based
governance structures. It is important to examine and address, in
particular, WIPO's development mandate as a U.N. agency, as well as
specific practical measures that need to be taken, in terms of
governance, to ensure that the development dimension becomes an integral
element of WIPO's work programme in all areas of activity.

15. WIPO was established by the 1967 WIPO Convention as an independent
international organisation succeeding the Bureaux Internationaux reunis
pour la protection de la propriete intellectuelle (BIRPI) to "promote
the protection of intellectual property" and "ensure administrative
cooperation among the Unions". This objective was, however, explicitly
clarified by the 1974 Agreement between the United Nations and WIPO,
which established WIPO as a specialized agency of the U.N. family with
the responsibility for:

[T]aking appropriate action in accordance with its basic
instruments, treaties and agreements administered by it, inter alia, for
promoting creative intellectual activity and for facilitating the
transfer of technology related to industrial property to the developing
countries in order to accelerate economic, social and cultural
development, subject to the competence and responsibilities of the
United Nations and its organs,…

16. While intellectual property protection may in particular
circumstances promote creativity and innovation, it is neither the only
way nor necessarily the most efficient or appropriate means for doing so
at all times and in all sectors of the economy. Similarly, it is highly
questionable that upward harmonization of intellectual property laws,
leading to more stringent standards of protection in all countries,
irrespective of their levels of development, should be pursued as an end
in itself. WIPO must, as a matter of course, examine and address all
features of existing intellectual property rights, including the
economic and social costs that IP protection may impose on developing
and least developed countries, as well as on consumers of knowledge and
technology in both the North and the South. WIPO, moreover, must be
open to, and actively consider, alternative non-intellectual
property-type systems for fostering creativity, innovation and the
transfer of technology, while recognizing the benefits and costs of each
system. Higher standards of protection should be undertaken only when it
is clearly necessary and appropriate for the promotion of creativity and
the transfer of technology, and where the benefits outweigh the costs of
protection. Indeed, paragraph 2 of the Preamble to the WIPO Convention,
as formulated in 1967, recognized that intellectual property is not an
end in itself but should only be used if it promotes creativity. As a
matter of fact, given the cross-cutting implications of IP protection,
as pointed out above, any attempts to pursue upward harmonization of
intellectual property protection, without proper consideration of the
potential costs of such initiatives for developing countries and LDCs,
as well as for consumers and the public at large, would be at odds with
WIPO's U.N. mandate.

17. Furthermore, WIPO should undertake its activities, especially
legal-technical and technical assistance with a development focus, based
on the 1995 Agreement between WIPO and the World Trade Organization
(WTO) with respect to the implementation of the TRIPS Agreement. Under
Article 4 of that Agreement, the International Bureau of WIPO and the
WTO Secretariat are required to cooperate in matters of legal-technical
and technical assistance "so as to maximize the usefulness of those
activities". In the context of TRIPS, legal-technical and technical
assistance activities have to ensure that the developing and least
developed countries are able to implement the pro-development provisions
of the TRIPS Agreement, for example, Articles 7, 8, 30, 31 and 40, in
addition to subsequent pro-development decisions, such as the Doha
Declaration on the TRIPS Agreement and Public Health.

18. In spite of the terms of the 1974 Agreement between the U.N. and
WIPO, ambiguities and misunderstandings regarding WIPO's mandate have,
for various reasons, persisted over the years. The 1967 WIPO Convention
has often been invoked by some to justify attempts to launch
negotiations on the upward harmonization of intellectual property laws
without a proper, comprehensive and fair consideration of the potential
implications and costs of such initiatives for developing countries and
LDCs. At other times, some have suggested that the WIPO Convention
prohibits the Organization from examining issues such as the control of
anticompetitive practices, transfer of technology, limitations and
exceptions to intellectual property rights and the protection and
enhancement of the public domain. All such restrictive interpretations
of WIPO's mandate would seem to run counter to WIPO's role and mandate
as a U.N. agency. In effect, given the clear cross-cutting implications
of IP for vital areas of public policy, in particular for developing
countries and LDCs, such narrow interpretations of WIPO's mandate and
mission are not desirable.

19. Several factors may have impeded effective implementation of the
Organization's development mandate in the past. Frequently, there has
appeared to be a misconception that the development dimension of
intellectual property is the same thing as technical assistance and that
technical assistance should be provided as a means for enhancing
enforcement measures in receiving countries. At other times, the
Organization may have lacked clear guidelines from the Member States on
how development should be placed at the core of WIPO programmes and
activities. This should be remedied by a debate on the subject in the
next meeting concerning the Development Agenda. It would be particularly
important to mainstream the development dimension into all of WIPO's
substantive and technical assistance activities and debates, including
the way in which the Organization deals with "enforcement" issues. The
objective would be to safeguard in all negotiations the development
oriented principles and flexibilities contained in existing Agreements,
such as Article 1 of TRIPS, which gives members the freedom to
"determine the appropriate method of implementing the provisions of this
[the] Agreement within their own legal system and practices", as well as
Article 41.5 which establishes in regards of enforcement that nothing
creates "any obligation to put in place a judicial system for the
enforcement of intellectual property rights distinct from that for the
enforcement of law in general". In that light, it is also important to
maintain the mandate of WIPO's Advisory Committee on Enforcement within
the limits of a forum for exchange of information.


II.1 (a) Bringing the WIPO Convention in Line with the Organization's
U.N. Mandate

20. As pointed out in Document WO/GA/31/11, one could make WIPO's
mandate clearer by means of an amendment to the 1967 WIPO Agreement that
would unequivocally inscribe the "development dimension" as an essential
element of the Organization's work program. One option is to amend the
Convention as indicated in the Appendix to document WO/GA/31/11. The
timing and convenience of initiating such negotiations should be
properly considered by by all Member States in the IIM on the
Development Agenda.


II.1(b) The Misconception that the Development Dimension Means Technical
Assistance

21. The proposal on a Development Agenda for WIPO is broad and
horizontal in nature and strives to address WIPO's work in all its
dimensions. In particular, it is critical to clarify that the
development dimension of intellectual property is NOT the same thing as
technical assistance. While technical assistance has a role to play in
ensuring that the implementation of intellectual property rules is
development-sensitive, the development dimension in intellectual
property means that, inter alia:

(a) With respect to norm-setting relating to intellectual property,
new subjects and areas for such norm-setting should be identified based
on clearly defined principles and guidelines and on an assessment of
their development impact. Differing levels of technological, economic
and social development should be recognized, and flexibilities and
"policy space" for the pursuit of public policy goals should be 
safeguarded.
(b) WIPO should be open to examining non-intellectual property-type
and/or non-exclusionary systems for fostering creativity, innovation and
the transfer of technology, for example, open collaborative models for
research, open and free software development, and compensatory liability
systems and the development of technology for the public good, while
recognizing the benefits and costs of each system.
(c) Specific measures should be undertaken to facilitate the transfer
of technology to developing countries and the contribution of such
technology transfer to their economic, social and cultural development
should be continuously measured, monitored and evaluated.
(d) Technical assistance should be demand-driven in the sense that it
corresponds to the needs and global political objectives of developing
and least developed countries, taking also into account the legitimate
interests of various stakeholders and not only those of rightholders.
Furthermore, the design, delivery and evaluation of technical assistance
should be based on clear principles and there should be open and
transparent guidelines relating to (1) the separation of the rule-making
and technical assistance functions of the WIPO Secretariat, (2)
transparency in technical assistance programmes, to be ensured by, for
example, making publicly available the roster of consultants, publishing
the exact amounts spent on technical assistance in specific countries
and on specific activities, and establishing a code of conduct for the
Secretariat staff and consultants, and (3) the use of development
indicators to assess the results of technical assistance.

22. Due to the cross-cutting nature of the issues relating to the
development dimension of intellectual property, the Development Agenda
should be pursued in all areas of WIPO's activities, including in the
work of all standing committees and other subsidiary bodies. The
proposal for a Development Agenda, due to its broad and horizontal
nature, cannot be limited to or contained within the work of any
specific subsidiary body within WIPO. All WIPO bodies are expected to
contribute to the realization of the development dimension. In this
regard, it is important to reiterate that while the Permanent Committee
on Cooperation for Development Related to Intellectual Property (PCIPD)
may be tasked by the General Assembly with some activities, it cannot be
the forum for addressing the proposals contained in document WO/GA/31/11.


II.1(c) Guidelines on Incorporating the Development Dimension into WIPO
Programmes and Activities

23. As already noted, one of the possible impediments to ensuring the
full implementation of WIPO's development mandate may have been lack of
clear guidance from the Member States on how development should be
placed at the core of WIPO programmes and activities. It is therefore
important that Member States develop clear principles and guidelines on
the basis of which the development dimension of the Organization's work
can be measured. In this regard, this submission proposes specific
guidelines and principles with respect to norm-setting, technical
assistance and technology transfer.


II.2 STRENGTHENING THE ROLE OF MEMBER-DRIVEN STRUCTURES TO ENSURE THE
EFFECTIVE IMPLEMENTATION OF WIPO'S DEVELOPMENT MANDATE

24. The governance and oversight structures of the Organization need
to be adequate and properly balanced to ensure the implementation of the
mandate, and in particular, that the Organization, and consequently the
Secretariat, performs its functions properly. The current governance and
oversight structures of WIPO need to be examined and recommendations
could be made on how to improve them.


25. As an international multilateral organization, WIPO should operate
in a member-driven manner. The Secretariat is guided by the instructions
of the General Assembly regarding both the internal and external affairs
of the Organization. Each Member State bears a special responsibility to
ensure this. For example, formal and informal meetings or consultations
held between Members or organized by the International Bureau upon
request of the Member States should be held in Geneva, in an open and
transparent manner that involves all interested Members States.

26. Some concerns and misunderstandings have been expressed, in the
past, with regard to WIPO's nature as an institution, due to its funding
structure. The activities of WIPO and the International Bureau are
financed by income from four main sources, namely, contributions by
Member States, fees paid by private sector users of WIPO's global
protection systems (PCT, Madrid, Hague and Lisbon Systems), the sale of
WIPO's publications and from interest earnings. In 2002, for example,
approximately 86 percent of WIPO's total funding came from fees. This
situation has led some actors to argue that WIPO should be more
responsive to the interests of the rightholders that use the global
protection systems and their associations, since the Organization
appears to have become "dependent" on them for financing. This line of
reasoning is not compatible with WIPO's intergovernmental nature.
Additionally, it is not conducive to a development sensitive
Organization that should cater to a multistakeholder constituency of all
members countries.

27. In fact, WIPO's existence is not dependent on rightholders, and
rightholders do not "fund" WIPO. WIPO as an international
intergovernmental organization is answerable to its Member States and
its existence depends on its Members only. The global protection systems
which contribute significantly to WIPO's income are systems that have
been created by Member States. Rightholders must not loose sight of the
central role played by Member States in the establishment of these
services. Consequently, as much as the International Bureau should
strive to provide efficient services as mandated by Members, payment for
those services by rightholders should in no way provide a basis for
anyone to claim that the users of those protection systems have the
right to determine the agenda or priorities of the Organization, or even
the manner in which the incomes of the Organization are to be allocated
under its Programme and Budget. WIPO must remain a Member-driven
Organization, where the role of the Secretariat is focused on
facilitating the work of the Members and implementing decisions and
instructions received from Member States.


II.2 (a) Establishing an Independent Evaluation and Research Office

28. In order to strengthen the oversight function of Members, as well
as the quality and cost-effectiveness of the Organization's
modus-operandi one should consider establishing an independent
evaluation and research office called the WIPO Evaluation and Research
Office (WERO), which would report to the General Assembly. The Head of
the Office would be vetted and approved by the General Assembly and
appointed for a fixed term after which time such a person may not be
employed in the WIPO Secretariat. Similar conditions may also apply to
the staff of WERO. The Office would have unrestricted access to all WIPO
documents and the results of the its research and recommendations would
be fed back into the on-going and subsequent WIPO programmes and
activities, including with respect to norm-setting.

29. Such an Office would provide a transparent, independent and
objective mechanism, vis-à-vis the General Assembly, the WIPO
Secretariat and all interested stakeholders, through which WIPO's
programmes and activities would be evaluated with respect to their
development impact in general, and their impact on innovation,
creativity and access to, and dissemination of knowledge and technology.
Its creation would not only have the effect of enhancing the credibility
of WIPO and its programmes but would also be in line with established
international practice. The World Bank Group, the International Monetary
Fund (IMF), the European Investment Bank, the United Nations Development
Programme (UNDP), among other international institutions, already have
similar mechanisms.

30. WERO should provide enhanced coordination both inside and outside
of WIPO as well as be mandated to present annual reports of its work,
research and findings to the General Assembly. Its functions could
include: evaluation of all WIPO programmes and activities with respect
to their development impact in general and their impact on innovation,
creativity and access to and dissemination of knowledge and technology;
carrying out "Development Impact Assessments" with respect to proposed
norm-setting activities in WIPO, as well as impact assessments and
research on existing WIPO administered treaties; avoidance of
duplication of costs and actions; the promotion of greater
cost-efficiency; monitoring and evaluating the design, delivery and
implementation of WIPO legal-technical and technical assistance
activities based on the principles and guidelines established by the
General Assembly and taking into account best practices from other
providers of technical assistance; and monitoring and evaluating WIPO's
policies and processes more generally. The foregoing list is meant to be
merely indicative. It is clear that the possible role and functions of
such an independent evaluation unit would have to be carefully examined
and discussed by Member States. The idea of establishing WERO should be
examined in detail during the next session of the General Assembly, in
September of 2005.


II.3 TRANSPARENCY AND INCLUSION: FACILITATING THE PARTICIPATION OF
PUBLIC INTEREST GROUPS IN WIPO PROCESSES.

31. Intellectual property law and policy as well as other regulatory
regimes relating to innovation and transfer of technology have
implications beyond the regulation of monopoly rights over inventions,
copyrights, trademarks and other related subject matter. They impact on
a much wider range of issues from access to education and learning
materials to the availability and affordability of essential medicines
as well on the efforts to bridge the digital divide and the
technological gap. When rules and standards touch upon such fundamental
issues, they cannot be formulated in accordance only with the expertise
and concerns of specialized IP lawyers and rightholders groups.

32. Openness of WIPO discussions and decisions and the participation
of public interest groups in discussions on an equal footing with
rightholders' associations must be sought. WIPO must take into account
in all its key policy and technical committees the interests of the
consumers, the public at large and those of rightholders. In this
context, among other issues, the role and relevance of the Policy
Advisory Commission (PAC) and the Industry Advisory Commission (IAC)
should merit re-evaluation.

33. The PAC and the IAC were established in 1998. According to the
memorandum of the Director General to 40th series of the Assemblies of
the Member States of WIPO in September/October 2004, the mandate of the
PAC is to "provide objective and informed external advice to the
Director General, particularly with respect to policy-making,
medium-term planning, processes and the needs of the market sector". The
IAC, on the other hand, was established for the purposes of ensuring
that the "voice of the market sector is heard and that the Organization
is responsive to its [market sector] needs" and ensure that there is "a
direct input of industry into the policy-making process in WIPO".

34. While the role of the PAC and the IAC are purely advisory, the
emphasis on the role of industry and the "market sector" has raised
concerns among other stakeholders about the preponderant participation
of industry vis-à-vis public interest groups in WIPO. It is important to
ensure that these advisory bodies whose membership is not determined or
vetted by Members States do not unduly influence the manner in which the
Organisation determines its priorities or implements Member's decisions.


II.4 OPERATIVE SUMMARY

35. To streamline the development dimension in WIPO's work programme and
ensure that WIPO's governance structures effectively promote the
application of the development dimension in all activities of the
Organization, it is proposed that:

* Members States could consider the possibility of amending the WIPO
Convention (1967) to bring it in line with WIPO's mandate as a UN
specialized agency;
* Principles and guidelines should be formulated to govern WIPO's
operation, in all programme areas and activities;
* WIPO should operate as a Member-driven institution, where the role of
the Secretariat is limited to facilitating the work of the Members and
to implementing decisions and instructions received from Members;
* A WIPO Evaluation and Research Office (WERO) could be established,
which would operate independently of the WIPO Secretariat;
* Measures should be taken to ensure wider participation by civil
society and public interest groups in WIPO discussions and activities;
* Measures should be taken to ensure that the Membership and functions
of the Policy Advisory Commission (PAC) and the Industry Advisory
Commission (IAC) are determined by the Member States.


III. PROMOTING PRO-DEVELOPMENT NORM-SETTING IN WIPO

36. Rapidly growing international intellectual property standards have
been placing unprecedented limits on the ability of developing countries
to tailor their intellectual property regimes to meet their economic,
social, and cultural needs, and have also imposed significant
implementation burdens. Challenges faced by Developing Countries in
"enforcement" of higher minimum international standards of protection
favouring right holders must be balanced by effective use and promotion
of flexibilities contained in the IP system, such as those of Articles
1.1 and 41.5 of the TRIPS Agreement, which explicitly recognizes that
theses countries have retained the freedom to determine the appropriate
form of implementation of their obligations in the area of intellectual
property.

37. These standards have been designed and expanded with little
consideration for their actual costs and benefits to developing
countries. Norm-setting at the international level has been dominated
by a paradigm that regards intellectual property rights as the only and
unequivocally beneficial instrument to promote creative intellectual
activity. Increased scope and levels for intellectual property
protection thus often become ends in themselves in international
negotiations, which have failed to take into account the need to promote
and enhance access to knowledge and the results of innovation.

38. WIPO, as one of the principal international institutions
responsible for negotiating standards and norms to promote creative
intellectual activity and to facilitate transfer of technology, has a
significant role to play in ensuring that intellectual property rules
advance development objectives and bears a special responsibility in
overcoming current limitations in international norm-setting. Until now,
norm-setting in WIPO has focused on encouraging international agreements
solely designed to promote the protection of intellectual property.
Attempts by the International Bureau to launch initiatives such as the
WIPO Patent Agenda, as well as its active engagement in support of
treaties currently under negotiations, which do not respond to
development objectives or priorities of developing countries and are not
concerned with their access to the socio-economic and cultural benefits
of innovation and creativity, are cases in point. To rectify this
situation, WIPO should pursue a more balanced and comprehensive approach
to norm-setting, emphasizing the design and negotiation of rules and
standards that are guided by and fully address the development
objectives and concerns of developing and least developed countries and
of the international community.

39. Discussion on the Establishment of a Development Agenda for WIPO
in the 2004 WIPO General Assembly reflected broad agreement among WIPO
Member States on the need to enhance and mainstream the development
dimension in WIPO activities, including norm-setting. The challenge, as
pointed out by some Member States, is now determining how norm-setting
and other activities within WIPO can effectively incorporate development
objectives and concerns. This section of the present submission
therefore identifies and elaborates on a number of principles and
guidelines that, applied to the various substantive norm-setting
activities in WIPO, would foster an inclusive and pro-development
approach to negotiations. The submission also proposes several
mechanisms for implementing these principles and guidelines in WIPO in
the context of the Establishment of a Development Agenda for the
Organization.


III.1 PRINCIPLES AND GUIDELINES FOR NORM-SETTING IN WIPO

40. Elaborating rules that effectively promote development and
creative intellectual activity requires an adequate framework for
negotiations and other WIPO norm-setting activities. Identifying
interests behind norm-setting initiatives, assessing the costs and
benefits of those initiatives in terms of sustainable development,
promoting a balance between protection and dissemination of knowledge
and the interests of developed and developing countries, fostering the
participation of a broad range of stakeholders, and supporting the
compatibility with broader international objectives and commitments
constitute, in this regard, concrete and significant steps that can be
taken in the context of WIPO norm-setting activities to ensure their
outcome reflects development needs and concerns.

41. We should reassess the norm-setting process at WIPO with a view to
guaranteeing that the development dimension is part of that process. As
a result, a number of principles and guidelines should apply broadly to
all WIPO norm-setting activities, including initiatives to implement or
modify current international intellectual property standards and to
develop new treaties. Such guidelines and procedures have also been
agreed to, for example, in the context of the World Trade Organization
(WTO) to determine the objectives, scope, and modalities of some
negotiations in that Organization. In this regard, possible guidelines
and procedures to direct norm-setting activities in WIPO should include:


III.1 (a) Member-driven and Transparent Work Plan and Strategic vision,
as well as Individual Initiatives
42. One of the obstacles for norm-setting initiatives in WIPO to
adequately respond to development objectives and concerns is the lack of
information about the short and long-term objectives of these
initiatives, as well as about their impact and the consequences of
various possible outcomes. The WIPO Secretariat has often played an
active role in norm-setting processes and in general there has not been
an adequate debate on the feasibility and desirability of new, expanded,
or modified rules. The points of view of developing and least developed
countries have been ignored in general and negotiations have been
launched without real consensus.

43. To ensure that the concerns of all WIPO Member States and relevant
stakeholders are appropriately addressed in norm-setting, the WIPO
Secretariat should not play a substantive negotiating role by endorsing
or supporting particular proposals for the implementation or development
of intellectual property rules or standards. On the contrary, the right
and burden should be on Member States to propose initiatives and
priorities for the work plan of WIPO and its different bodies, as well
as to provide a clear indication of the actual need for, as well as the
costs and benefits of the proposed norms, to enhance a balanced and
informed debate, as proposed below.


III.1(b) Comprehensive Assessment and Justification in Terms of
Sustainable Development

44. Intellectual property protection is not an end in itself, but
rather a means to support public policy objectives such as economic,
social, and cultural well-being. Any development, implementation or
modification of international intellectual property rules should be
based on and respond to sustainable development needs and concerns. All
norm-setting activities in WIPO should be based on available empirical
evidence and on a cost-benefit analysis. Given that intellectual
property protection will generate different costs in different
circumstances, from implementation burdens to potential loss of public
policy space - from the economic, social, cultural, and environmental
perspectives -, its necessity and desirability vis-a-vis other
non-intellectual property-type and/or non-exclusionary options should be
thoroughly analyzed on a case-by-case basis.

45. Alternatives within and outside the intellectual property system
that would reach similar objectives with less monopoly of knowledge
should be particularly considered. For instance, the potential of open
access models for the promotion of innovation and creativity should be
explored as a feasible and desirable option in many contexts. Given
that the granting of exclusive rights frequently entail considerable
costs, particularly in terms of access to knowledge and essential goods
of crucial importance to social and economic development, any initiative
involving the creation of new or expanded intellectual property rights
should only be adopted if proven to be superior, in social and economic
terms, to solutions based on the creation of public goods. Indeed,
recognizing that current international intellectual property rules have
emphasized the protection of rights vis-a-vis the public domain, WIPO
should now actively seek ways to safeguard and promote the public domain
and the innovative and creative activities that depend on it.

46. As stated by the Commission on Intellectual Property Rights
established by the government of the United Kingdom, the questions to be
answered for each proposed norm-setting initiative include: How much
intellectual property protection is a good thing? How should it be
structured? Serious answers tot these questions shall be found to
promote compatibility between sustainable development and norm-setting
activities.


III.1(c) Recognition of Different Levels of Technological, Economic and
Social Development

47. Another key issue to consider in norm-setting is the need to
balance the benefits and costs of any initiative between developed and
developing countries and, more generally, between the consumers and
producers/owners of proprietary technological knowledge. The design
and effectiveness of intellectual property as a tool for development has
proven to be directly related to prevailing socio-economic
circumstances, as becomes obvious when one considers the historical
record and the evolution of national intellectual property regimes,
particularly in the developed countries. As a result, the different
levels of development of Member States should be an inherent
consideration in WIPO norm-setting. Only an unambiguous recognition of
the need to gauge intellectual property rules according to differing
development needs and concerns, and thus of the need for a more
equitable distribution of the costs and gains of intellectual property
protection, can validate norm-setting activities in WIPO as being
balanced and inclusive of all its Member States.

48. Such an approach should be reflected in operative and substantial
special and differential treatment provisions for developing countries
and least developed countries. Moreover, a pro-development approach to
norm-setting should recognize sustainable development as its raison
d'etre: all international norms on intellectual property –not just a few
provisions in each instrument– should be designed to contribute to the
economic, social, and environmental welfare, especially of developing
and least developed countries, and to stimulate relevant innovation,
research, and technology, and promote access to knowledge.


III.1(d) Recognition of the Rights of Different Stakeholder Groups and
the General Public as users of the Intellectual Property System

49. As the development dimension requires norm-setting in WIPO to
fully consider and take into account the needs and concerns of
developing and least developed countries, it also commands the
recognition of the rights of a wide range of stakeholders, all of which
constitute the true "users" of the intellectual property system. It is
not only the interests of owners of intellectual property that should be
contemplated and respected, but also those of society at large, as well
as the particularly vulnerable segments of the population. As noted by
Member States in the 2004 WIPO General Assembly, intellectual property
should strike a better balance between private rights and the public
interest. Nevertheless, in many norm-setting initiatives in WIPO, it is
solely the interests of those that seek new or increased intellectual
property rights that are considered.

50. In discussions currently taking place in the Standing Committee on
Copyright and Related Rights (SCCR), for instance, little consideration
has been given to the rights of performers, authors, educators,
students, consumers, and others who would be directly impacted by the
proposed new rules. Similarly, when future work in the area of patent
law harmonization was discussed during the Tenth Session of the Standing
Committee on the Law of Patents (SCP), only the approach of patent
holders was brought to the attention of Member States. A pro-development
approach to norm-setting in WIPO requires moving away from such a narrow
perception of the constituencies whose interests are at stake in respect
of intellectual property-related issues and fostering the consideration
of the rights and interests of a broad range of stakeholders, as well as
promoting their active and effective participation in WIPO's work.


III.1(e) Compatibility with, and Support of the Objectives and
Provisions of other International Instruments

51. In order to fully incorporate the development dimension,
norm-setting in WIPO should not merely consider sustainable development
objectives in its processes and outcomes, but also ensure that these
processes and outcomes are fully compatible and actively support other
international instruments that reflect and advance those development
objectives. It is not only a matter of ensuring coherence; it is also
one of recognizing the purpose and inherent limitations of intellectual
property as an instrument of public policy and the fact that IP
protection cannot be seen as an objective or a value in itself. As a
result, for instance, under no circumstances can human rights – which
are inalienable and universal – be subordinated to intellectual property
protection.

52. Likewise, intellectual property must adequately support basic
rights and public policy objectives enshrined by the international
community, including the Millennium Development Goals (MDGs), the Plan
of Implementation of the World Summit on Sustainable Development, and
the Convention on Biological Diversity. In this regard, a critical
criterion in the analysis of the costs and benefits of norm-setting
initiatives should be ensuring that the proposed rules or standards are
supportive of these other international instruments and do not run
counter to their objectives.


III.2 IMPLEMENTING PRO-DEVELOPMENT PRINCIPLES AND GUIDELINES IN WIPO

53. Recognition and application of the principles and guidelines
described above are essential to ensuring that the processes and
outcomes of all WIPO norm-setting activities promote a
development-oriented international intellectual property system.
Consequently, they should be incorporated without delay into both
binding and non-binding norm-setting activities, including initiatives
to implement or modify current international intellectual property
standards and to develop intellectual property rules in new fields. The
mechanisms to implement these principles include:

(a) Undertaking independent, evidence-based "Development Impact
Assessment" (DIA) to consider the possible implications of each
norm-setting initiative for core sustainable development indicators such
as innovation, access by the public to knowledge and products, job
creation, poverty alleviation, equity, respect for cultural diversity,
protection of biodiversity, health, and education, particularly in
developing and least developed countries. Such an independent
evaluation could be carried out by the proposed WIPO Evaluation and
Research Office (WERO) with the effective participation and engagement
of a broad range of key stakeholders. As part of the DIA process, a
cost-benefit evaluation should also be requested from other relevant
international organizations and bodies, including the United Nations
Conference on Trade and Development (UNCTAD), the Food and Agriculture
Organization (FAO), the World Bank, the World Health Organization (WHO),
the South Centre, and the Commission on Human Rights. In particular,
DIAs could be:
* conducted in a staged manner, including through both preliminary and
advanced DIAs as the norm-setting activities are proposed and take place;
* performed through a consideration of the proposed norms and the
different policy scenarios, as well as their impact on several country
groups, including developed, developing, and least developed countries
and the world as a whole;
* focused not only on direct impacts, but also on indirect and
cumulative, impacts;
* carried out and executed with an emphasis on the relationship between
the proposed rules or standards and other international instruments, to
ensure they are compatible and support objectives, rights, and
flexibilities established by the international community in other fora.
In particular, rights or standards that surpass those established by the
WTO TRIPS Agreement should be exceptional.
(b) Incorporating provisions recognizing the difference between
developed and developing WIPO Member States in all norm-setting
initiatives. These provisions should aim to recognize the over-arching
objectives and principles of intellectual property protection, provide
longer compliance periods, promote transfer of technology, safeguard the
national implementation of intellectual property rules, suppress
anti-competitive practices, and generally ensure intellectual property
rules are a coherent part of broader development strategies. Provisions
such as these have already been proposed by developing countries in the
SCP for the draft Substantive Patent Law Treaty (SPLT). It is our
expectation that they will be agreed to by all WIPO Member States, in
the SCP and other WIPO subsidiary bodies;
(c) Holding public hearings prior to the initiation of any discussion
toward norm-setting in WIPO, with the broad participation of different
stakeholders, including other intergovernmental organizations, academia,
consumer groups, and other civil society organizations. Such
participation should continue and be promoted in the course of
norm-setting discussions and negotiations.


IV. Principles and Guidelines for WIPO's Provision of Technical
Assistance and Evaluation

54. The proposal for the Establishment of a Development Agenda for
WIPO (WIPO document WO/GA/31/11) noted the central importance of WIPO in
the provision of intellectual property-related technical assistance and
capacity building. Apart from WIPO's own mandate, by virtue of the 1995
Agreement between WIPO and the World Trade Organization (WTO), WIPO
plays an important role in the implementation of the TRIPS Agreement in
developing countries. Under Article 4 of that Agreement, WIPO and WTO
Secretariat are required to cooperate in matters of legal-technical and
technical assistance "so as to maximize the usefulness of those 
activities".

55. In the context of the TRIPS Agreement, legal-technical and
technical assistance activities should mean implementing its provisions,
including the pro-development ones, such as Articles 7, 8, 13, 30, 31
and 40, as well as subsequent pro-development decisions such as the Doha
Declaration on the TRIPS Agreement and Public Health, in a manner
responsive to the development needs and aspirations of individual 
countries.

56. While WIPO has made significant strides in providing developing
countries with technical assistance, more needs to be done to ensure
that such assistance is useful to development objectives. At the same
time, WIPO's technical assistance has come under criticism from various
quarters including independent bodies such as the U.K Commission on
Intellectual Property Rights, which in its report in 2002 characterized
WIPO's technical assistance as too often planned and delivered in
isolation from development goals of developing countries.

57. It is clear that for WIPO's technical assistance to be of value to
developing and least developed countries, such assistance needs to be
planned and delivered based on transparent principles and guidelines on
the basis of which an objective assessment of its impact and
effectiveness can be made. Principles and guidelines established by the
Member States will provide a much needed road map for the expansion and
qualitative improvement of WIPO's technical assistance. This document
elaborates on the possible principles and guidelines for the provision
of technical assistance by WIPO and on the mechanisms for implementing
the principles and guidelines.


IV.1 CONCERNS OVER THE PROVISION OF INTELLECTUAL PROPERTY TECHNICAL
ASSISTANCE

58. Technical assistance in many ways is a service to promote and
enhance coherent policy formulation, review and legislative reform. As
developing countries continue to implement intellectual property-related
treaties, such as the TRIPS Agreement, WIPO administrated treaties and
to participate in new negotiations at the multilateral, regional and
bilateral level, appropriate and effective technical assistance and
capacity building will be crucial if these countries are to use
intellectual property and other tools for fostering creativity and
technological development effectively in the pursuit of their
development goals.

59. The type of intellectual property technical assistance that has
been provided in the last decades, as already noted, has raised a series
of concerns. These concerns relate to the underlying philosophy, content
and process of the technical assistance provision. The most important
concerns raised by various stakeholders and the wider literature on
intellectual property technical assistance include the following:

* intellectual property may often be seen as an objective in itself.
Broader policy concerns such as science and innovation policies,
technology transfer, access to technological goods and enhanced
competition have been addressed in a very limited manner;
* solutions to the technical and capacity constraints tend to be
identified and designed by the providers and not by the beneficiaries of
the assistance;
* there is a tendency to over-emphasize the benefits of intellectual
property while giving very little attention to the limitations and
actual costs;
* the content of the technical assistance programmes has mostly focused
on the implementation and enforcement of obligations and not on the use
of in-built rights and flexibilities in international treaties for
developing countries;
* little attention has been given to different levels of development and
cultural differences;
* there is insufficient suport for local input and capacity building
when identifying solutions that are specific to the respective country
and its economic structure;
* assistance is mostly targeted to a limited group of beneficiaries
(mostly intellectual property offices and certain business groups);
* the widespread provision, over a number of decades, of model laws to
developing countries without sufficient or any accompanying advice on
the trade and development effects of these laws and full analysis of the
evidence regarding economic effects; and
* There has been little independent evaluation of the technical
assistance provided by WIPO, including to determine the impact and
effectiveness of the assistance programmes.

60. With a view to addressing the above concerns and the inherent
urgency of making good use of the limited resources allocated to
intellectual property technical assistance in WIPO, there is need to
establish a set of international principles to improve the quality of
technical assistance and to adopt guidelines for the design, delivery
and implementation as well as evaluation of technical assistance
provided by WIPO including in the context of the 1995 Agreement between
WIPO and the WTO.


IV.2 PRINCIPLES AND GUIDELINES FOR THE PROVISION OF TECHNICAL ASSISTANCE

61. In order for WIPO's technical assistance to be useful in the
long-term, and for there to be a basis for objective review and
improvement, the Organization's activities and programmes in this field
should be guided by pre-agreed principles and guidelines. Among others,
the principles and guidelines could include:


IV.2(a) Development Focused Technical Assistance

62. The provision of technical assistance should have as its
objectives the fulfillment of the development goals of the recipient
countries and broader development goals such as the United Nations
Millennium Development Goals (MDGs). In designing, delivering and
evaluating technical assistance, the different levels of development of
various countries should be taken into account.


IV.2 (b)Comprehensive and Coherent Assistance Programmes

63. Special attention shall be paid to developing the technical
capacity of countries to fully use in-built flexibilities in
international agreements to advance national pro-development policies.
Coherence and mutual supportiveness with other relevant international
instruments must also be promoted. The use of model intellectual
property laws without careful evaluation of their effects should be
discouraged.


IV.2 (c) Integrated Approach

64. The intellectual property system cannot work in isolation from
competition policy and other related regulatory regimes. In designing
technical assistance programmes, there is a need to expand its coverage
to include matters related to the use of competition law and policy to
address abuses of intellectual property and practices that unduly
restrain trade and the transfer and dissemination of technology.


IV.2(d) Neutral, Unbiased and Non-Discriminatory

65. The provision of technical assistance should be neutral and of
advisory nature based on actual and expressed needs. The assistance
should not discriminate among recipients or issues to be addressed and
should not be perceived as being a reward system for supporting certain
positions in WIPO negotiations.


IV.2(e) Tailor-made and Demand-driven

66. The technical assistance programmes and activities should ensure
that intellectual property laws and regulations are tailored to meet
each country's level of development and are fully responsive to the
specific needs and problems of individual societies. The assistance
should correspond to the needs of various stakeholders in developing and
least developed countries and not just the intellectual property offices
and rightholders.


IV.2(f) Independence of Providers

67. WIPO technical assistance staff and consultants should be fully
independent and potential conflicts of interest should be avoided.


IV.2(g) Continuous Evaluation as to Effectiveness

68. WIPO's technical assistance programmes and activities should be
continuously evaluated both internally and independently to ensure its
effectiveness.


IV.2(h) Transparency

69. All information about design, delivery, cost, financing,
beneficiaries and implementation of technical assistance programmes as
well as the results of internal and external independent evaluation
should be publicly available.


IV.3 MECHANISMS FOR THE IMPLEMENTATION OF PRO-DEVELOPMENT TECHNICAL
ASSISTANCE

70. The adoption of principles and guidelines on technical assistance
will not by itself improve the effectiveness of the technical assistance
programmes if concrete mechanisms are not set up to implement and
monitor the adherence to these principles and guidelines. In order to
implement the above principles and guidelines, a number of measures
therefore need to be undertaken. Among others, these could include:


IV.3(a) Adoption of the Principles and Guidelines by the 2005 WIPO
General Assembly

71. The principles and guidelines elaborated above should be adopted
by the next WIPO General Assembly in September/October 2005 and should
form the basis for all future WIPO technical assistance and capacity
building.


IV.3(b) Establishment of Databases and Dedicated Webpage to Improve
Information sharing

72. There is a need to improve information sharing by using existing
resources including databases on technical cooperation by major donors
and providers. A web page with all technical assistance information
provided by WIPO and other relevant international organizations and
donors could be created to enhance transparency and allow for objective
monitoring processes. A permanent notification system could assist in
keeping such a system operative and updated. Whenever a country requests
WIPO's assistance, WIPO could, by means of the website notify Members
and other interested parties including observers that its assistance has
been sought and where models, drafts etc. are suggested, these should
also be publicly available.


IV.3 (c) Defining and Separating the Functions of the WIPO Secretariat

73. Exploratory work should be undertaken to analyze options for
separating norm-setting functions from technical assistance functions of
the WIPO Secretariat. Two possibilities, among others, could be
considered. One option could be for the General Assembly to merge most
of the functions of the Economic Development Sector with those of the
WIPO World Wide Academy (WWA) and set up a semi-independent arm for
research, technical assistance and capacity building. While such a
structure could still remain part of the WIPO Secretariat, under the
Director General, an independent advisory panel appointed by the General
Assembly could be constituted to internally evaluate the performance of
technical assistance programmes, monitor the adherence to the proposed
principles and guidelines and help set priorities for research and
assistance.

74. Alternatively, a wholly independent entity, not part of the WIPO
Secretariat, but funded by WIPO, could be established along the model of
the Advisory Centre on WTO Law (ACWL). The managing board of such an
independent entity could be drawn from the WIPO Secretariat, UNCTAD,
UNDP, UNESCO, UNIDO, WTO, WHO and FAO as well as other international
organisations with expertise in development and intellectual property.
The board could also have representation from industry and from consumer
and public interest groups.

75. Whichever approach is taken, the technical assistance activities
of WIPO could at any rate be subject to the independent evaluation and
monitoring of the proposed WIPO Evaluation and Research Office (WERO).
We have provided the details on the operation and possible functions of
WERO in the section on the mandate and governance of WIPO.


IV.3(d) Establishment of a Code of Ethics and Assuring independence of
Consultants

76. Consideration should be given to developing an ethics code for the
Secretariat's technical assistance staff and consultants to ensure the
highest level of professionalism and neutrality. Such a code of ethics
could also be useful to protect the staff and consultants from undue
influence and/or harassment. In addition, the roster of consultants for
technical assistance should be available to the public. The selection
process for consultants should look at potential conflicts of interest
in relation to parallel public or private activities as well as ethical
behavior.


IV.3(e) Development of Indicators and Benchmarks for Evaluation

77. A process for identifying relevant indicators and benchmarks for
evaluating the Organization's technical assistance activities should be
commenced as soon as possible. UNCTAD, the World Bank and other
international organizations could provide inputs in the identification
of relevant indicators.


V. GUIDELINES FOR FUTURE WORK ON TRANSFER AND DISSEMINATION OF
TECHNOLOGY AND RELATED COMPETITION POLICIES

78. Transfer of technology is a comprehensive term covering mechanisms
for transmitting technical information across borders and its effective
diffusion into the host economy. It refers to numerous complex
processes, ranging from innovation and international marketing of
technology to its absorption and imitation. Transfer of technology may
be realized through formal –market- as well as informal –non-market-
means. A formal or market mechanism is a commercial transaction, based
on a legal arrangement between consenting parties. It includes, in the
main, trade in goods, foreign direct investment (FDI), licensing, joint
research and development (R&D) arrangements.

79. There are also important legitimate informal, non-market channels
of transfer of technology. Perhaps most significant is the process of
imitation through product inspection, reverse engineering, decompilation
of software, and even simple trial and error. Another means is to study
available information about new technologies. Patent applications are
available for this purpose. Thus, patents are expected to provide both
a direct source of technology transfer, through FDI and licensing, and
an indirect form through inspection. To play this role, patent
disclosures need to provide sufficient information for engineers to
understand the technologies.

80. In brief, under these various mechanisms, intellectual property
protection can play a role but not a unique role, for transfer and
dissemination of technology. The TRIPS Agreement recognizes precisely
that the transfer and dissemination of technology should be a
fundamental objective of the global intellectual property system.
Moreover, under Article 1 of the Agreement between WIPO and the United
Nations (1974), WIPO is recognized as a specialized agency with the
responsibility for taking appropriate measures for facilitating transfer
of technology related to industrial property to developing countries in
order to accelerate economic, social and cultural development.

81. Even in the case of formal technology transfers that occur mainly
in voluntary transactions, it has been recognized that this process
often does not work as intended and that the unwillingness to transfer
technologies might pose a competitive threat. In fact, it is frequently
the case that IP right holders choose to exercise the monopoly rights
conferred by patents and other forms of intellectual property in a
manner that runs counter to the purported principles and objectives of
the IP system, including the transfer and dissemination of technology.
Policies are thus needed to rectify this situation, by removing
impediments to the transfer and dissemination of knowledge and to lower
the costs and risks of technology acquisition.

82. As proposed in document WO/GA/31/11, the development dimension of
intellectual property policy requires that WIPO, through a dedicated
process, explore the type of policies, initiatives and reforms necessary
to contribute to the transfer and dissemination of technology to the
benefit of all countries. Such work is in fact indispensable if WIPO is
to fulfill the second part of its U.N mandate which confers WIPO with
the responsibility of taking appropriate action for "facilitating the
transfer of technology". This submission therefore elaborates on how
such a process could be undertaken in WIPO and suggests possible
guidelines and approaches for a future programme on transfer of
technology-related matters in WIPO.


V.1 PRO-DEVELOPMENT APPROACHES TO TRANSFER AND DISSEMINATION OF TECHNOLOGY

83. The issue of transfer of technology to developing countries is not
new. It has been in the international agenda for decades. However,
drawing on the lessons of the past and a better understanding of the
process, a pro-development approach to this subject is called for. To
this end, this section of the submission reviews, first, possible
mechanisms that developed countries might promote to facilitate the
transfer and dissemination of technology to developing countries.
Secondly, the paper explores, in a non-exhaustive manner, possible new
initiatives at the multilateral level that could contribute to this
endeavor. It, finally, concludes with some observations on the role of
competition policies in this area.


V.2 INTELLECTUAL PROPERTY POLICIES AND STANDARDS

84. Historically, the intellectual property system has included
elements that are supportive of efforts to promote technology transfer
and follow-on innovation, effective mostly under circumstances
prevailing in the developing countries. Patents, trade secrets,
copyrights, and trademarks, however, can hamper or create impediments to
tech-transfer, particularly when considered through the perspective of
technology flows from Developed to Developing countries, i.e. from
technology producer nations to technology consumer nations. Therefore
attention should be paid to a number of intellectual property specific
instruments that while effectively recognizing the rights of inventors
and creators across the board, produces very unbalanced results in terms
of encouraging transfer of technology to developing countries and the
establishment of functional national innovation systems in their
respective national jurisdictions.

85. From this perspective a more dynamic approach to transfer and
dissemination of technology, for the benefit of developing and least
developed countries, should incorporate, among others, appropriate
policies with respect to:
* protection criteria (e.g. patentability);
* duration of rights beyond a reasonable time to justify rewarding
innovation and creativity;
* exceptions to exclusive rights;
* use of public tools (e.g. disclosure and working requirements,
compulsory licensing, open source software);
* system of protection relevant to national circumstances;
* administrative and procedural aspects.

86. The above listing, although illustrative, covers a whole range of
technical issues that could not be exhaustively covered in this paper.
What follows is, however, indicative of what could be done in the
context of the Development Agenda.


V.2(a) Supportive IP-related Policies by Industrialized Countries

87. With a view to promoting transfer and dissemination of technology,
among other related objectives, WIPO should contribute to a debate with
other relevant international organizations, as appropriate, on such
initiatives as an undertaking by developed countries to provide:
* technical and financial assistance for improving the ability of
countries to absorb technology;
* fiscal benefits to firms transferring technologies to developing
countries of the same type often available in developed countries for
firms that transfer technologies to nationally less developed regions;
* same tax advantages for R&D performed abroad as for R&D done at home.
For example, to meet the terms of Article 66.2, TRIPS, there might be
somewhat greater advantages offered for R&D performed in developing
countries;
* fiscal incentives to encourage enterprises to train scientific,
engineering and management graduates from developing countries, with a
view to their knowledge being used for development of technology in
their country of origin;
* public resources, such as those from the National Science Foundation
or National Institutes for Health in the United States, could be used to
support research into the technology development and technology transfer
needs of developing countries;
* grant programs could be established for research into technologies
that would be of greatest productivity for the purpose of meeting
priority social needs of developing countries. Technologies developed
under such programs could be made publicly available, specially those
funded through public resources;
* grant programs could be devised that offer support to proposals that
meaningfully involve research teams in developing countries, in
partnership with research groups in donor countries;
* Universities should be encouraged to recruit and train students from
developing countries in science, technology, and management. Incentives
for setting up degree programs through distance learning or even foreign
establishments may be particularly effective;
* Special trust funds for the training of scientific and technical
personnel, for facilitating the transfer of technologies that are
particularly sensitive for the provision of public goods, and for
encouraging research in developing countries.


V.2(b) Multilateral supportive Measures

88. At the multilateral level, the following initiatives could be
considered:
* Adoption of commitments like those contained in Article 66.2 of the
TRIPS Agreement, expanded to benefit all developing countries;
* the establishment of a special fee on applications through the Patent
Cooperation Treaty, the revenues of which would be earmarked for the
promotion of research and development (R&D) activities in the developing
and least developed countries;
* the establishment of an intermediary conduit to reduce the asymmetric
information problem in private transactions between technology buyers
and sellers, for knowledge about successful technology-acquisition
programs that have been undertaken by national and sub-national
governments in the past. It could serve a useful role in encouraging
collaboration and information sharing among member governments. Such
programme could involve, for example, detailed information about past
policies and effective partnerships between agencies and domestic firms
in acquiring technologies and the terms involved, such as royalty rates
and contract clauses that resulted in actual local absorption. They
could also describe the most effective roles for public research
facilities and universities in facilitating technology transfer. Once
enough information of this type has been compiled and studied, it could
attempt to develop a model technology transfer contract that could serve
as a guideline for transfer of technology and would represent the
legitimate interests of both buyers and sellers;
* A multilateral agreement where signatories would place into the public
domain, or find other means of sharing at modest cost, the results of
largely publicly funded research. The idea is to set out a mechanism for
increasing the international flow of technical information, especially
to developing countries, through expansion of the public domain in
scientific and technological information, safeguarding, in particular,
the public nature of information that is publicly developed and funded
without unduly restricting private rights in commercial technologies.


V.3 COMPETITION POLICIES

89. Exploitation of intellectual property rights could give rise to
anticompetitive behaviour, whether by individual firms or by concerted
practices or agreement among firms. An adequate definition and
implementation of public policies to deal with this problem represents
one of the most important criteria for the efficient functioning of any
intellectual property system and thus to the enhancement of the transfer
and dissemination of technology. A pro-competitive intellectual
property system needs to incorporate appropriate competition policies,
among others, to prevent the abuse of intellectual property rights, the
resort to practices that unreasonable restrain trade or adversely affect
the international transfer of technology.

90. However, relationships between intellectual property rights and
their potential abuse in technology markets are complex and require
considerable expertise in diagnosis and treatment. Moreover, the scope
for abusing intellectual property rights depends on the competitive
nature of distribution markets and entry possibilities. To rely on this
avenue for enhancing transfer of technology may require a broad policy
approach to expanding dynamic competition. Work in this area should not
be alien to the pursuit of a Development Agenda in WIPO.

91. Intellectual property laws aim at conferring exclusive rights on
individuals to enable owners to appropriate the full market value of the
protected subject matter. By promising that the intellectual property
holder may obtain a full reward from the market, intellectual property
rights may serve as an incentive for the creation, use and exploitation
of inventions, works, marks and designs.

92. However, it is often the case that intellectual property owners
exploit their legal rights to unreasonably block competition. They may
do this, for example, by exploiting the unique characteristics of
certain protected products that prevent rival firms from developing
alternative products or entering certain markets, and refusing to grant
licenses to prospective competitors. While the traditional problems of
technology transfer in hardware industries persist, new problems have
arisen in the service industries, and practices other than those
relating to licensing have become more important, in particular in
regard to foreign direct investment, cooperation agreements,
outsourcing, standardization, interconnection, and access to information.

93. Three types of conflicts may arise between the pursuit of
competitiveness and intellectual property rights. First, intellectual
property may be used contrary to the objectives and conditions of its
protection, a situation called misuse. Second, market power resulting
from intellectual property may be used to extend the protection beyond
its purpose, such as to enhance, extend or abuse monopoly power. Third,
agreements on the use or the exploitation of intellectual property may
be concluded in restraint of trade or adversely affecting the transfer
or the dissemination of technology or other knowledge, a situation
called restrictive contracts or concerted practice. In order to prevent
or control such conflicts and to distinguish pernicious practices from
competition-enhancing ones, many countries have enacted antitrust
regulations or other competition legislation to respond to
anticompetitive behaviour. Competition rules are not designed to curb
the functioning of the intellectual property system, but rather to
safeguard its proper functioning.

94. The TRIPS Agreement sets out general principles to establish and
enforce anti-monopoly policies. The relevant competition provisions of
TRIPS are Article 8.2 and Article 40. Article 8.2 is part of the
"General Provisions and Basic Principles" of Part I of the Agreement.
Another relevant competition provision of the Agreement is Article 31(k)
dealing with compulsory licenses in the case of practices which have
been determined, after judicial or administrative process, to be
anticompetitive and need to be remedied by the grant of compulsory 
licenses.

95. Effective administration and enforcement of an intellectual
property-related competition policy appear to be particularly important,
in view of the interdependency of intellectual property protection and
competition. Where the efficient functioning of intellectual property is
impaired by restrictive practices, the market-oriented incentives
decline and social costs rise. In this respect, a well-balanced design
of intellectual property treaties and national laws as regards, for
example, exceptions for prior users, experimental or fair use, adequate
disclosure, efficient and working requirements and misuse defences, may
help both to unburden competition policy and encourage private action
against undue claims for protection.

96. The complexities of the application of substantive competition
policy rules relating to intellectual property require specialized and
administrative agencies and courts.

97. A major concern that has been expressed in respect of the
intellectual property system as regards transfer of technology is the
potential for abuse of exclusive rights conferred by patents and other
forms of intellectual property. In this context, the work on technology
transfer in WIPO may address elements such as:
* the consideration of model approaches on how to implement the relevant
provisions of TRIPS;
* the inclusion in new intellectual property treaties of relevant
provisions to deal with anti-competitive behaviour or abuse of monopoly
rights by rights holders, such as the proposed Substantive Patent Law
Treaty (SPLT);
* the development of an international framework to deal with issues of
substantive law relating to anti-competitive licensing practices
primarily those that adversely affect the transfer and dissemination of
technology and restrain trade;
* the provision of technical cooperation to developing countries, at
their request, to better understand the interface between intellectual
property rights and competition policies;
* implementation of intellectual property policies in developing
countries should be matched with appropriate enforcement mechanisms that
effectively restrain anti-competitive behaviour;
* Developed countries authorities to undertake, at the request of
affected countries, enforcement actions against firms headquartered or
located in their jurisdictions.

98. In sum, any implementation of substantive rules of competition
policy must take account of a large number of complex factors, such as
national and international market conditions and interdependencies and
the goals and structure of national intellectual property (including its
built-in pro-competitive rules such as experimental or fair use,
exhaustion, patent or copyright misuse defences). This is certainly no
easy task and not one that can be complied with by isolated policies or
by one developing country. Rather this is a complex, challenging and
time-consuming endeavour that should be part and parcel of the
programmatic work of WIPO.