[Commons-Law] Proposals to reform WIPO on Development

[Anivar]

TWN Info Service on WTO and Trade Issues (Apr05/5)
13 April 2005
Third World Network
www.twnside.org.sg


Developing countries present comprehensive plan to reform WIPO

A four-point proposal to establish a "Development Agenda" and reform the
World Intellectual Property Organisation (WIPO) has been put forward to
WIPO members by 14 developing countries in the Group of Friends of
Development.

On behalf of the Group, Brazil submitted a comprehensive 30-page paper
containing many critical conceptual points on intellectual property,
development and WIPO's performance, and accompanied by concrete reform
proposals.  It is the main basis for discussions at a WIPO
inter-sessional intergtovernmental meeting (IIM) on a Development Agenda
for WIPO on 11-13 April in Geneva.

The new paper contains four main proposals: a review of the mandate and
governance of WIPO; promotion of pro-development norm-setting in WIPO;
establishing principles and guidelines for WIPO's technical assistance
work and evaluation; and guidelines for future work on technology
transfer and related competition policies.

Below is an article that summarises the key points of the Friends of
Development paper.  It was published in the SUNS Bulletin on 12 April
2005.

With best wishes

Martin Khor (TWN)

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Developing countries present comprehensive plan to reform WIPO

By Martin Khor, Geneva, 11 April 2005

A four-point proposal to establish a "Development Agenda" and reform the
World Intellectual Property Organisation (WIPO) has been put forward to
WIPO members by 14 developing countries in the Group of Friends of
Development.

On behalf of the Group, Brazil submitted a comprehensive 30-page paper
containing many critical conceptual points on intellectual property,
development and WIPO's performance, and accompanied by concrete reform
proposals.  It is expected to be the main basis for discussions at a
WIPO inter-sessional intergtovernmental meeting (IIM) on a Development
Agenda for WIPO to be held on 11-13 April.

The Group comprises Argentina, Bolivia, Brazil, Cuba, Dominican
Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa,
Tanzania and Venezuela.  They had co-sponsored a proposal to establish a
"Development Agenda" at WIPO's General Assembly on 27 Sept-5 Oct last
year.  The new paper is an elaboration of the original proposal.

Arising from discussions on the proposal, the General Assembly mandated
that WIPO hold inter-sessional intergovernmental meetings be held to
discuss the issue (and report back to the General Assembly), and that
WIPO organise a public symposium on intellectual property and
development.

The new paper contains four main proposals: a review of the mandate and
governance of WIPO; promotion of pro-development norm-setting in WIPO;
establishing principles and guidelines for WIPO's technical assistance
work and evaluation; and guidelines for future work on technology
transfer and related competition policies.

In an introduction, the Group says its main concern is to ensure that
WIPO activities are driven towards development-oriented results. The
basic proposal of the "Development Agenda" is that development should be
a central dimension in any negotiation involving IP systems.

WIPO has focused on the diffusion of standardized approaches to IP
policies that uncritically assume that development follows suit as IPR
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 implications of
increased and standardized IPR protection in terms of access to and
diffusion of science, technology and related knowledge and know-how.

The Group says the "Development Agenda" promotes a critical examination
of the implications for developing countries of the adoption of
increased IPR protection, rather than approach this highly controversial
issue from the one dimensional perspective of the private rights
holders, ignoring the broader public interest.

The "Development Agenda" recognizes that IP is relevant to building
technological capacity, but also stresses the importance of public
interest flexibilities provided for by the IP system for formulating
development-oriented policies.

IP is not an end in itself, but as a means for promoting the public
interest, innovation, and access to science. 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.

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 and
IP agreements should address different levels of development of member
countries, their social needs and industrial challenges as well as their
capacity to participate in and benefit from the IP system.

In its proposal for the review of the mandate and governance of WIPO,
the Group says that WIPO as a member of the United Nations family should
be guided by the development goals of the U.N and that development
concerns should be fully incorporated into WIPO programmes and
activities.

The Group proposes that WIPO address impediments to implementing its UN
mandate.and that its  Member-based governance structures should be
strengthened.

The 1967 WIPO Convention specifies the aim to "promote the protection of
intellectual property".  But the 1974 UN-WIPO agreement established WIPO
as a UN specialized agency with the responsibility 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."

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 countries on consumers of knowledge and technology in both
the North and the South.

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. Any attempts to pursue upward harmonization of intellectual
property protection, without proper consideration of the potential costs
of such initiatives for developing countries and consumers and the
public, would be at odds with WIPO's U.N. mandate.

It is important to mainstream the development dimension into all of
WIPO's substantive and technical assistance activities.  The Group
proposes that Members States consider 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
operations. 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;

On promoting pro-development norm-setting in WIPO, the Group says that
international IP standards have placed unprecedented limits on the
ability of developing countries to tailor their IP regimes to meet their
needs.

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 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.

These standards have been designed and expanded with little
consideration for their actual costs and benefits to developing
countries.  International norm-setting has been dominated by a paradigm
that regards IPRs as the only and beneficial instrument to promote
creative intellectual activity. Increased scope and levels for
intellectual property protection thus often become ends in themselves in
international negotiations.

The Group says that WIPO has a significant role in ensuring that IP
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 IP protection, exemplified by
the International Bureau's attempt to launch initiatives such as the
WIPO Patent Agenda, and its active engagement in support of treaties
currently under negotiations, which do not respond to development
objectives, are cases in point. To rectify this situation, WIPO should
pursue a more balanced and comprehensive approach to norm-setting,
emphasizing rules and standards that address the development objectives.

The Group proposes principles and guidelines to apply to all WIPO
norm-setting activities, including:

-- Member-driven and Transparent Work Plan.  The Group says that the
WIPO Secretariat has often played an active role in norm-setting
processes, there has not been an adequate debate, the views of
developing countries have been ignored, and negotiations have been
launched without real consensus.  It proposes that the WIPO Secretariat
should not play a substantive negotiating role by endorsing or
supporting particular proposals.  The right and burden should be on
Member States to propose initiatives and priorities for the work plan of
WIPO and its different bodies.

--  Assessment and Justification in Terms of Sustainable Development.
Any development, implementation or modification of IPR rules should be
based on sustainable development needs.  All norm-setting activities in
WIPO should be based on empirical evidence and on a cost-benefit
analysis.  The desirability of IP options vis-a-vis other non-IP and
non-exclusionary options should be analyzed on a case-by-case basis.
Alternatives within and outside the IP system that would reach similar
objectives with less monopoly of knowledge (for example, open access
models) should be particularly considered.   Indeed, WIPO should seek
ways to safeguard and promote the public domain and the innovative and
creative activities that depend on it.

-- Recognition of Different Levels of Development.  Different levels of
development of Member States should be recognised in WIPO norm-setting
and reflected in special and differential treatment provisions.

--  Recognition of the Rights of Different Stakeholders.    The Group
says that in many cases WIPO solely considers the interests of those
that seek new or increased IPRs. In the Copyright committee, little
consideration has been given to the rights of performers, authors,
educators, students and consumers.  Similarly, when future work was
discussed in the patents Committee, only the approach of patent holders
was focused on. Such a narrow perception of the constituencies should be
replaced by 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.

-- Compatibility with other International Instruments. WIPO processes
and outcomes should be compatible with and support other international
instruments that advance those development objectives. For instance,
under no circumstances can human rights - which are inalienable and
universal - be subordinated to IPRS.  IP must support rights and
objectives in the Millennium Development Goals (MDGs), the Plan of
Implementation of the World Summit on Sustainable Development, and the
Convention on Biological Diversity.

--  Implementing pro-development principles. The Group proposes a
"Development Impact Assessment" (DIA) of each norm-setting initiative
for 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.

There should be provisions recognizing the difference between developed
and developing WIPO Member States in all norm-setting initiatives. These
provisions should recognize over-arching objectives and principles of IP
protection, provide longer compliance periods, promote transfer of
technology, safeguard national implementation of intellectual property
rules, suppress anti-competitive practices.  Such provisions have been
proposed by developing countries in the draft Substantive Patent Law
Treaty (SPLT).

The Group also proposes the holding public hearings prior to the
initiation of any discussion toward norm-setting in WIPO, with the broad
participation of different stakeholders.

The paper says that WIPO's technical assistance (TA) has come under
criticism. Concerns relate to the underlying philosophy, content and
process of WIPO's technical assistance provision. They also include that
IP is seen as an objective in itself; solutions 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.

Also, 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. WIPO also provides 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

The Group proposes principles and guidelines to improve WIPO's technical
assistance (TA).
It says TA should take account of different levels of development and
build countries' capacity to fully use pro-development flexibilities in
international agreements. The use of model IP laws without careful
evaluation of their effects should be discouraged.

TA programmes should include the use of competition law and policy to
address abuses of intellectual property.  The provision of technical
assistance should be neutral and of advisory nature based on actual and
expressed needs. WIPO technical assistance staff and consultants should
be fully independent and potential conflicts of interest should be
avoided.

The Group also suggested pro-development TA be implemented through
technical adoption of the proposed Principles and Guidelines by the 2005
WIPO General Assembly, establishment of Databases and Dedicated Webpage,
separating the functions of the WIPO Secretariat, a Code of Ethics and
assuring independence of consultants,  and indicators and Benchmarks for
Evaluation

The Group also proposes guidelines for future work on technology
transfer and dissemination, and related competition policies.   It says
that patents, trade secrets, copyrights, and trademarks, however, can
hamper tech-transfer.

A dynamic approach to transfer technology should incorporate 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; and
administrative and procedural aspects.

The paper calls for WIPO to take initiatives to get developed countries
to provide assistance to improve the ability of countries to absorb
technology; fiscal benefits to firms transferring technologies to
developing countries; same tax advantages for R&D performed abroad as
for R&D done at home.

It also proposes multilateral initiatives such as commitments like those
contained in Article 66.2 of the TRIPS Agreement, a fee on applications
through the Patent Cooperation Treaty, to be used for R&D activities in
developing countries; and an intermediary conduit to reduce the
asymmetric information problem in private transactions between
technology buyers and sellers; and a multilateral agreement where
signatories would place into the public domain the results of largely
publicly funded research.

The Group also proposes measures to boost competition policies. To
counter IP-related anticompetitive behaviour, competition policies
should be introduced to prevent the abuse of IPRs.

WIPO's technology transfer work may address elements such as: model
approaches on how to implement the relevant provisions of TRIPS;  the
inclusion in new intellectual property treaties (such as the SPLT) of
relevant provisions to deal with anti-competitive behaviour or abuse of
monopoly rights by rights holders,  the development of an international
framework to deal with issues of substantive law relating to
anti-competitive licensing practices; 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.