Development: Development Agenda process resumes in WIPO

The process on a Development Agenda for the World Intellectual Property Organisation resumes with a week-long meeting starting 20 February.

New proposals have been submitted by the Group of Friends of Development (comprising 14 developing countries), Chile and Colombia. The United States is also expected to present a paper.

The Development Agenda process will now be taken on by a new Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA). It had been set up as a compromise during the last WIPO General Assembly held on 26 September-5 October 2005.

The Development Agenda initiative had been launched at the 2004 WIPO General Assembly from proposals by several developing countries in an attempt to introduce and strengthen the development dimension into various aspects of WIPO's work, including norm-setting and technical assistance.

The Agenda process had been carried forward through Intergovernmental Inter-sessional Meetings (IIM). In 2005, there were three IIM sessions. The IIM was mandated to examine proposals for Establishing a Development Agenda for WIPO and to prepare a report by 30 July 2005 for the General Assembly to consider.

However, the IIM process could not complete its work on time and at the 2005 General Assembly, the developing countries proposed renewing the IIM mandate and process but the developed countries resisted this idea. As a compromise, the PCDA was formed instead.

The General Assembly decided that the PCDA would accelerate and complete discussions on proposals relating to a WIPO Development Agenda, in two one-week sessions (the first session beginning on 20 February) and report with any recommendations to the General Assembly at its September 2006 session. New proposals should be submitted by 20 February.

At last year's IIM sessions, proposals were made by the Group of Friends of Development (a group of 14 developing countries that co-sponsored the proposal for the Establishment of a Development Agenda for WIPO), the Africa Group, Bahrain, the US, United Kingdom, and Mexico.

Only preliminary discussions were held on the proposals. As the PCDA replaces the IIM process, it is expected that these proposals will be the subject of more in-depth discussions in the meeting next week.

However, it has been unclear to many delegates how the discussions on the proposals will be structured. Establishing a procedure for structured discussion aimed at producing a report with recommendations is seen by many developing countries as crucial, if there is to be progress and a concrete product to be presented to the 2006 General Assembly.

There is concern that sorting out procedural issues may take up too much time at the start of the meeting, as has been the case in the past IIMs. How quickly and appropriately the procedural issues are settled is seen to be important to the success of the PCDA's first meeting.

The meeting will probably spend significant time on discussing the new papers submitted. The most comprehensive in scope is the paper by 15 developing countries in the Group of Friends of Development (Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela).

Their proposal is on "a framework for achieving concrete and practical results in the near and longer terms" in relation to the Development Agenda.

The Group summarises what it considers to be five core issues that have emerged from the discussions so far. It then proposes that the Provisional Committee set up a cross-cutting Program of Work on the establishment of a Development Agenda for WIPO for the short, medium and long terms. (See separate article on details of the Group's paper).

The paper by Chile contains 3 proposals, focusing on public domain and the importance of complementary systems to and in intellectual property.

The first part is on the importance of protecting the integrity of the public domain. The paper states that the public domain is of crucial importance for researchers, academics, teachers, artists, authors and enterprises, which require a rich base of content for their new creations, as well as for those institutions involved in disseminating knowledge, such as universities, research centers, libraries, information services, archives and museums.

It quotes various declarations and recommendations by the international community that recognize "the capacity of the public domain to increase the availability and dissemination of knowledge", "especially in the light of digital technologies and the Internet which facilitate the dissemination and distribution of knowledge for all".

Among the documents cited are those from UNESCO and the World Summit on the Information Society.

While "recognizing that the public domain is fundamental for ensuring access to knowledge and promoting the creative processes of innovation", Chile requests WIPO to consider (i) deepen the analysis of the implications and benefits of a rich and accessible public domain, (ii) draw up proposals and models for the protection and identification of, and access to, the contents of the public domain, and (iii) consider the protection of the public domain within WIPO's normative processes.

The second part of the Chile paper proposes that WIPO set up a permanent area for analysis and discussion of incentives and models promoting creative activity, innovation and technology transfer in addition to and within the intellectual property system.

It states that besides the IP system there are other policy instruments that have proven to be of great use in the success and enrichment of creative and inventive activity, as well as for the dissemination and transfer of technology such as competition, tax benefits, direct contributions, work commissions and public procurement.

In addition, within the IP system itself, there are various models that also provide sufficient incentives for creative works. It refers to "the expansion of free software and other open licenses such as Creative Commons" which "suggests the need to identify, study and disseminate the licensing options which co-exist within the intellectual property system".

The final part of the paper proposes a study for assessing what are the appropriate levels of intellectual property, considering the particular situation in each country, its degree of development and institutional capacity.

The study should consider not only the benefits of implementing the IP system but also the costs, and the recommended or appropriate levels of IPR protection taking into account the degree of development and particular social and cultural situation in a country, based on the minimum standard established by the TRIPS Agreement.

Specifically it proposes that the study should consider (i) the relationship between intellectual property policies and competition policies; (ii) exceptions and limitations to the intellectual property system, which facilitate the implementation of innovation promotion and creation policies, based on the comparison of national models; and (iii) the economic and social effects of changes on protection levels.

The study should be conducted by an independent body, selected by means of an open international public bidding process. The terms of reference should be discussed by the WIPO Members. The study should consider the contribution of multilateral bodies and civil society.

Colombia submitted a proposal on "Development of Agreements between WIPO and Private Enterprises, allowing the national offices of developing countries to access specialized databases for the purposes of patent searches".

Colombia said that the patent offices in developing countries usually have limited resources, thus making it very difficult for them to study the "novelty" of a patent application.

Thus, it is essential for these offices to have access to commercial databases such as STN International, Questel-Orbit and Thompson-Delphion , that contain large volumes of information which may be useful to facilitate the work of patent examiners in identifying whether prior art exists. This in turn will result in the granting of patents on inventions that are truly novel and involve an inventive step.

It proposes that WIPO should enter into agreements with private enterprises with databases to allow patent offices from developing countries to access these databases at no cost.

The US is also expected to submit a paper expanding on its earlier March 2005 proposal on the creation of a WIPO partnership program regarding an Internet-based database to bring together "donors and recipients of IP development assistance." The database would have sections on partners, countries or regions, and success stories. A WIPO partnership office would evaluate requests for assistance and seek partners to fund and execute the projects.

A draft of the new US proposal says that the partnership program should seek out potential partners to assist countries making the transition to or competing more effectively in, the knowledge-economy; that Members conduct a "stock-taking" of and develop a statement of core policies and objectives on cooperation and development activities; that WIPO should assist Members in conducting targeted surveys as a first step in developing practical strategies to achieve their goals; that the WIPO Secretariat conduct studies on the economic contribution of IP based industries; that the WIPO Standing Committee on Information Technologies should discuss the role of IP-related aspects of ICT in economic and cultural development and thereafter identify strategies for its use; and that the WIPO Advisory Committee on Enforcement should discuss and analyze the relationship between the rates of counterfeiting and piracy of IP and technology transfer, foreign direct investment and economic growth. The WIPO Secretariat should also assist in collection of data on piracy.

It is clear on reading this draft of the US proposal that the underlying assumption is that strong IP protection is imperative if a country is to develop its creative industries, its technology capacity, attract foreign direct investment as well as to be able to participate in the knowledge economy.

The paper also sees the WIPO Development Agenda through the lens of providing technical assistance to developing countries. This is evident as it states that "The United States believes that the Provisional Committee is an appropriate forum to begin this discussion and the Permanent Committee on Intellectual Property and Development (PCIPD) is the proper place to continue the work".

The PCIPD which in the interim (due to the formation of PCDA) has ceased to exist according to the 2005 General Assembly Decision, used to deal with matters related to technical assistance. The US (supported by several other developed countries) wanted the plan to reform WIPO to be subsumed by discussion on technical assistance in the PCIPD.

This is in direct contrast with what many developing countries are hoping for. Many of these countries, including the Group of Friends of Development, want 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 short, they are hoping to mainstream the development dimension into all of WIPO's substantive and technical assistance activities, and to change WIPO's mindset which is geared toward upward harmonization of intellectual property laws, leading to more stringent standards of protection in all countries, irrespective of their levels of development.