WIPO meeting discusses African and Colombian proposals

The third day of the meeting of the WIPO's Provisional Committee on Proposals Related to a Development Agenda (PCDA) discussed proposals of the Africa Group and Colombia.

Many aspects of the Africa Group proposal were in line with the proposal by 15 developing countries in the Group of Friends of Development (GFOD). It
received strong support from many developing countries. The Colombian proposal also received strong support.

In informal consultations, the Chair, Ambassador Rigoberto GautoVielman of Paraguay and the regional coordinators also discussed how to proceed with
the over 50 specific proposals that have been submitted by WIPO Members. One suggestion was to cluster the proposals into specific categories.

The Africa Group, represented by Nigeria, presented a new document containing a summary of its proposals which were structured under 9 categories.

The first category is on Technical Assistance (TA). The Group proposes that TA should be development-oriented, demand-driven, targeted, with time-frames for completion; to develop and improve national institutional capacity through development of infrastructure; to strengthen national capacity for protection of local creations; to provide increased assistance to WIPO through donor funding for more activities in Africa; to develop an effective review and evaluation mechanism; establish an independent development impact assessment relating to TA, technology transfer and norm setting on developing countries and LDCs.

Under the second category on technology transfer, the Group proposes: the development of criteria and methodology to select essential technologies and
to monitor the diffusion of such technologies; the relaxation of patent rules in the area of technology; the creation of a new body for coordinating and assessing all transfer of technology policies and strategies; the development and maintenance of a list of essential technologies and know how, processes and methods for basic development needs; and to facilitate the implementation of technology- related provisions of Multilateral Environmental Agreements.

Under the third category "Reforming the Informal Sector in Africa", a study on obstacles to IP protection in the informal sector is proposed, while under the fourth category of "Small and Medium-Sized Enterprises (SMEs)", the formulation of ways and means for SMEs to use flexibilities in international agreements is proposed.

Under the fifth category on "Information and Communication Technologies", it is proposed that WIPO expand the scope of its activities aimed at bridging
the digital divide in accordance with the outcomes of the World Summit on the Information Society in its future activities.

Under another category "Human Resources Development and Brain Drain", there is a proposal to assist African countries create an appropriate legal and
regulatory framework in order to reverse the brain drain into brain gain.

Under the seventh category "Use of Flexibilities in International Instruments", it requests WIPO to examine the flexibilities under the TRIPS Agreement and Doha Summit decisions, giving practical advice on how to gain access to essential medicines and food and elaborate a mechanism to facilitate access to knowledge and technology.

The eighth category is on Norm Setting. The Africa Group proposes the adoption of an internationally binding instrument on the protection of genetic resources, traditional knowledge and folklore; elaboration on a mechanism to facilitate access to knowledge and technology; formulation and adoption of measures designed to improve the participation by civil society and other stakeholders in WIPO activities.

The final category is on "Institutional Mandate". The Group proposes the establishment of a trust fund for technical assistance for LDCs and for WIPO to intensify its cooperation with all UN agencies.

Members of the GFOD, such as Egypt, saw the Africa Group proposal as complementary. Other developing countries stressed the importance of some of
the proposals to WIPO under the heading of technical assistance, technology transfer, the use of flexibilities in international instruments, norm setting and institutional mandate.

In particular, references were made on the need to establish an independent development impact assessment of the technical assistance that is being and
will be provided by WIPO; to develop appropriate measures to facilitate technology transfer, including the relaxation of patent rules; for WIPO to assist developing and least-developed countries to use the flexibilities available in the international instrument; to adopt an international instrument to deal with the problem of bio-piracy and an instrument to facilitate access to knowledge; to improve civil society participation in WIPO activities; and for WIPO to intensify cooperation with all UN agencies that deal with development issues.

Argentina Ambassador Alberto Dumont, on behalf of the GFOD, said that common to both proposals is the view that developing countries need to integrate the development of IP to ensure that it is not a barrier to the social and economic policies of these countries.

He added that the African proposal especially acknowledges the proposal of the GFOD, and he was pleased with the degree of convergence of both proposals which are complementary and mutually supportive.

Malaysia supported the proposal on the use of flexibilities in international instruments and the need to intensify cooperation with all UN agencies. It
also supported the proposal on how technical assistance should be delivered.

Austria, on behalf of the EU, supported the first two proposals in the category of technical assistance. It agreed that WIPO should play a role in the transfer of technology, so far that it was related to IP and that it should provide advice on flexibilities in the TRIPS Agreement. It also said that the issue of brain drain goes beyond IP, but indicated that protecting IP will discourage creators from leaving the country.

The US supported the call for increased assistance to WIPO by donor countries for technical assistance as well as bilateral technical assistance in Africa, the request for foreign patent information and the call to integrate the informal sector into mainstream economies.

It did not believe that relaxation of patent rules will promote innovation. It agreed that WIPO should assist to set up a regulatory framework to reduce
the brain drain. It favoured the WIPO Committee on Genetic Resources to continue its work, with no outcome excluded. It also did not favour impact
assessments for norm-setting.

Colombia said that it had great expectations that the Africa Group might be able to link the Digital Solidarity Fund to WIPO activities. On brain drain,
it stated that although the issues go beyond the scope of WIPO, WIPO could contribute to the reduction of this trend.

Brazil said it identified many of the ideas of the Africa Group proposal with many elements in the GFOD document, adding that the proposal contains
many items of profound relevance to the Development Agenda.

On technical assistance, it said there was room for improving and fine-tuning of the kind of assistance provided by WIPO to countries. Developing countries' policy space has been reduced more than the space in developed countries, due to international obligations.

Raising international IP protection with a one-size-fits-all approach has led to inversion of logic to the Development Agenda. Stronger patents are
being granted in developing countries and weaker patents in developed countries. This needs to be addressed in WIPO's norm-setting activities and
not as a technical assistance issue.

It said that conditions are not the same in developing countries, adding that competition regulation is not the same, the consolidation of monopoly in developing countries has broader consequences, and the levels of production of science and its translation into marketable products does not happen in developing countries. Thus, IP cannot be applied as if developing countries had the same conditions as developed countries, Brazil said.

It expressed concern on the relationship between IPRs, their enforcement, and human rights and said that this relationship should be a guiding principle of the organizations. If agreements take away policy space, then developing countries cannot take responsibility for putting in place solutions and laws that meet their domestic needs. Brazil stressed that guidelines should be adopted for technical assistance, which should also be demand-driven and include impact assessments.

Regarding technology transfer, it said that one of the means is facilitating access to patent information. Relaxation of patent rules would be useful as norm-setting has a major impact in developing countries. It agreed with the Africa Group proposal of the need to address bio-piracy. This is a norm-setting agenda that developing countries want, thus, the issue of disclosure of origin, benefit sharing, and prior informed consent are relevant and should be dealt in a way that deals with IP here in WIPO and in the WTO.

It also agreed with the Africa Group proposal on using flexibilities in international instruments, adding that this should be part of WIPO's TA programme, as it is a loss to developing countries that these flexibilities are not being made use of. On norm-setting, it supported the concrete proposals on facilitating access to knowledge which could also diversify WIPO's agenda.

India welcomed the efforts in clustering the proposals, stating that it is useful for moving forward. It supported the proposal for an international binding instrument on misappropriation. It also added that a technology transfer body could look into making essential technology available to developing countries.

Pakistan called the Africa Group proposal "a comprehensive proposal in terms of form and substance". It added that the proposal is in the true spirit of the DA, containing specific suggestions on how to fill the gaps contained in the current IP system.

On technical assistance, it supported the idea of independent development impact assessments. On technology transfer, it said that it should be at affordable cost. It was important to identify the flexibilities with regard to the IP system and make them operable.

On the structure of the synopsis, Pakistan said that it lends an insight on how to further the discussion. It said that Members need a structured approach, as they have to deliver on a time-frame. Thus, what should be looked at is a first assignment on what decisions could be taken early. It added that the approach taken by the Africa Group is result-oriented, which can help in the adoption of an approach in a larger discussion.

Colombia, in presenting its proposal, explained that it was aimed at facilitating the basic work carried out by national patent offices which had limited resources for assessing the "novelty" of the patent applications, so they need to be aided by other resources such as private sector databases.

It said that commercially-owned databases can offer more benefit when searches are being carried out in the national offices, as they are well structured, organised, specific and efficient. It said that access to these databases would make it easier to carry out the searches for "prior art".

It proposed that WIPO explore options to sign agreements with these companies to enable developing countries to have access for a limited time amount each month and at no costs. Alternatively, it proposed that WIPO could negotiate a reduced tariff through a group/bulk subscription for developing countries.

The proposal of Colombia was in principle supported by many countries, including El Salvador, Panama, Chile, Azerbaijan, Peru and Kenya.

Austria, on behalf of the EU, welcomed the proposal and said that it underlines the importance of patent search to grant high quality patents and that innovations must be sufficiently inventive to merit the award of a patent. It requested Colombia to elaborate on their proposal.

The US said that the financial implications of the proposal should be looked at. It said that it supported all efforts to improve patent quality and that is why it was supporting the process of harmonizing of patents standards taking place in the discussion on the draft Substantive Patent Law Treaty.

Brazil called attention to the quality of patent examinations and the facilities of national patent offices, which was one of the factors that led to the proposal to establish a Development Agenda. It added that the proposal has some convergence with the concerns put forward by the GFOD, including the concern of the quality of patent examination which should be improved by widening the access to information in the patent system. It encouraged Colombia to widen its proposal and devise a study on the quality of information in the patent system.

Nigeria welcomed the Colombian proposal. It said that entering into bilateral negotiations with private institutions is rather costly and so it was important to bring it up here for consideration and implementation. It also said that it would be more cost-effective for WIPO to establish such arrangements.