WIPO: G77 calls for structured talks at Development Agenda meeting
20 February, 2006
Sangeeta Shashikant (TWN)
Most of the morning on the first day of the meeting of the Provisional Committee on Proposals to Establish a WIPO Development Agenda (PCDA) was spent by delegates in informal consultations over the Chairmanship. Eventually, the Paraguayan Ambassador Rigoberto Gauto Vielman, was elected the Chair.
Coordinators of regional groupings and proponents of new proposals made their introductory statements in the afternoon, with many developing countries stressing the need to get down to structured and action-oriented discussion that would result in recommendations for the WIPO General Assembly.
The 2005 General Assembly had 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.
The PCDA was formed as a compromise to take forward the discussions on proposals pertaining to a Development Agenda for WIPO which in 2005 had been discussed at three Inter-Sessional Intergovernmental Meetings (IIM).
The contenders for the PCDA Chairmanship were Paraguayan Ambassador Rigoberto Gauto Vielman and Romanian Ambassador Doru Romulus Costea. While Romania (in the process of acceding to the EU) had the backing of Group B (developed countries), many developing countries were of the view that the Paraguayan Ambassador should Chair the PCDA as he had chaired the previous IIMs.
Some delegates speculate that Group B was aggressive in pushing forward their candidate i. e. a new Chairman for the PCDA meeting, to establish that the PCDA is a new process, distinct from the IIM track.
During the regional coordinators' meeting, on the election of a Chair, suggestions that perhaps both the Ambassadors could co-chair the PCDA or perhaps one Ambassador could chair a week each (as the PCDA will have two one-week sessions) were proposed. After many hours of discussions in the morning, the Romanian Ambassador finally withdrew from the election process.
The PCDA, which convened at 12:43 p. m., elected the Paraguayan Ambassador as the Chair of the PCDA and the Ambassador of Kyrgyzstan as Vice-Chair.
In the afternoon, the plenary heard general opening statements from the regional groups and presentations from the Africa Group, Chile, Colombia, Group of Friends of Development and the US on their respective proposals. (For details of the proposals, see SUNS #5848, 22 July 2005; SUNS #5969, 20 February 2006.)
The developing countries emphasized the need for structured discussion that will result in concrete outcomes by the end of the Provisional Committee meetings, which can form the basis of development-oriented decisions to be taken at the WIPO General Assembly in September.
Ambassador Masood Khan of Pakistan, on behalf of the Group of 77 and China, said that the PCDA has been mandated by the WIPO General Assembly to take care of the unfinished business from the IIMs held last year and WIPO members must deliver on this mandate.
He said that the Development Agenda (DA) discussions in WIPO form an 'important milestone'. Development has been placed at the centre of the international agenda by the UN World Summit in New York last year and WIPO being part of the UN family has an obligation to incorporate and mainstream development as a core value in its programmes and operational activities, he added.
The Ambassador expressed hope that the Provisional Committee will organize its work efficiently in a more result-oriented fashion. He added that the proposals presented so far reflect a diversity of views on transfer of technology, technical cooperation, information sharing, promoting and operationalizing public interest flexibilities and enforcement issues. The G77 and China's view was that a structured discussion on these areas would form the basis of a result-oriented approach.
The G77 and China recalled the Doha Declaration adopted at the Second South Summit in Qatar last year which stressed that 'while developing countries are committed to undertaking their international obligations, these undertakings may impose high costs and that given the differences in development and the ability of countries to assume obligations, it is imperative that identical obligations are not forced on unequal participants'. The Declaration further stressed the need to integrate the development dimension into international rule-making taking into account the need for flexibility and national policy space for countries while assuming international commitments.
Therefore, added Ambassador Khan, the main-streaming of the development dimension into all activities in WIPO should constitute a priority for the organization. The G77 and China are of the view that the most important issue at the heart of the Development Agenda discussion is the need to ensure that the Intellectual Property System provides states, at different levels of development, with the necessary policy space to meet their development needs.
He added that development orientation in a norm setting organization like WIPO primarily means protecting and operationalizing flexibilities that can be utilized by countries at different levels of development, in pursuit of their legitimate developmental objectives.
The Ambassador said that in discussions in the IIMs last year, affordability and accessibility of essential products like pharmaceuticals, textbooks and educational software had often been cited as primary examples of areas where such flexibilities need to be either created or made operable with regard to the IP system. Development impact assessment of normative activities of WIPO carry significance in this regard, he added.
Development is a shared objective of the international community and it must not be undermined or diluted by a difference of opinion on the ways and means to achieve this objective, said the Ambassador, stressing that WIPO Members must agree on a concrete outcome that can form the basis of development-oriented decisions to be taken at the next General Assembly.
Croatia, on behalf Central European and Baltic States, said it welcomed efforts to identify common themes. Given WIPO's recent budgetary difficulties, it would not be supportive of creating new bodies within WIPO. It added that the PCDA agenda should not jeopardize the normal functioning of WIPO and its various bodies.
Thailand, on behalf of the Asian Group, stressed the importance of achieving public policy objectives such as access to medicines, access to educational materials, etc. It added that the IP system should be balanced to take into account the different circumstances of Member States.
It supported the main-streaming of the development agenda into WIPO norm-setting activities and urged that the debate move beyond general discussion of IP to come forth with concrete action proposals to take to the General Assembly.
China supported the intervention by Thailand, and added that the situation is unique in each country, thus the discussion should be on the principle that each country has its own priorities and will participate in those areas which it prioritizes.
The Indian Deputy Permanent Representative, Mohinder Singh Grover, said that the continuation of the WIPO DA debate is heartening and it demonstrates that WIPO Members care about public interest issues. The task for WIPO Members was to 'finalize and concretize' a Development Agenda for WIPO. Issues inter alia, such as Access to Knowledge, analysing the social impact of IPR including partnerships and training, and facilitating the transfer of technologies, should be given focused attention as main concerns of development.
He added that there should not be a 'one-size-fits-all' approach since Members are at different stages of development. By agreeing to a Development Agenda for WIPO, Members will ensure the welfare of WIPO Member States on an equal footing.
Austria, on behalf of the European Community, said that it shared the premise that development-related issues can be integrated into WIPO and it believed that this can be done within the existing WIPO Convention and the 1974 Agreement with the UN.
This, it said, can best be done by strengthening relationships with other international agencies. It suggested that focus be given to proposals that are 'ripe for harvest', as this will help engender trust and cooperation and will result in an international IPR regime that increases encouragement for foreign direct investment, stimulate economic growth and provide benefits to all.
The US reiterated that WIPO's mission is to promote IP throughout the world while cooperating with international organizations where appropriate. It said that WIPO has excelled in its mission. It did not support a 'one-size-fits-all' approach and said that it did not believe that IP is inconsistent with development.
On behalf of the Africa Group, Nigerian Ambassador Joseph U. Ayalogu elaborated on the Africa Group's proposals on a WIPO Development Agenda, which he said, are predicated on the collective experiences as a body of developing and least developed nations confronted by the challenges of development. He highlighted some of the Group's proposals.
Regarding Technical Assistance (TA), he said that it should be 'development-oriented and demand driven'. It should take on board the national capacity to absorb assistance, its relevance to the nation's development, effective financing and delivery, and impact assessment studies to make TA more relevant.
He said that laws governing technology transfer and access should be reviewed with a view to making them more suited to the development of individual national capacity to innovate and develop. The Africa Group has called for the relaxation of the existing patent laws and the provisions of Article 66.2 of the TRIPS Agreement should be looked at critically.
The African economies rely largely on the informal sector for employment and income generation. Special IP systems commensurate with the particular needs and characteristics of this sector should be developed as the idea is for modern IP systems not to be a hindrance to the flourishing of the informal sector.
Nigeria said that technical assistance should be mindful of disparities in terms of information technology infrastructure, access to technologies and R&D matters. The digital divide should be bridged through international frameworks such as the World Summit on Information Society (WSIS) and support for the Digital Solidarity Fund (DSF).
The Africa Group believed that any meaningful discussion of IP and development should take into account the following points: (1) There must be clear and consistent rationale for IP protection; (2) There must be an assessment of the costs and benefits of IP protection; (3) IP protection must not be divorced from the aspirations of developing and least developed countries for economic growth and development, the acquisition of technological know-how etc; (4) The international IP architecture must be made conducive to the fostering of protection of both tangible and intangible assets of communities and nationals especially in respect of traditional knowledge, genetic resources and folklore; (5) Public interest concerns such as access to knowledge, health and nutrition, agriculture and so forth must be protected; (6) IPRs should be used as tools to foster innovations and R&D in developing and least developed countries; (7) IPRs should also be made to increase competitiveness of developing countries' products and to expand trade and development.
Argentina's Ambassador Alberto Dumont spoke on behalf of the Group of Friends of Development, presenting its latest paper (Doc. No. PCDA/1/5) which proposed how to structure discussions at the PCDA and the way forward.
He said that the mandate of the Provisional Committee requires the debate to be substantive and stressed that the committee will have to use all tools available to it to ensure that specific and concrete recommendations are formulated within the time-frame.
He added that there being many proposals does not mean that there isn't agreement. There are common threads running through the various proposals. There was agreement that WIPO has a responsibility to promote development as part of its mandate as a UN specialized agency. He referred to the statement by the EC that WIPO has a specific mandate to facilitate development.
He then reiterated the six common threads in the various proposals that had been identified in the Friends of Development's paper. He expressed support for the Africa Group proposal and the Chilean proposal.
Chile's paper was introduced by its Ambassador, Mario Martis. The paper (PCDA/1/2) contains 3 proposals. He said that the first proposal on 'appraisal of the public domain' was based on the notion that things are created from other things and not out of nothing.
A rich public domain is a key factor for growth and creativity, and further easy access to the public domain is essential, as is protection from any sort of misappropriation. However, current global trends are increasing exclusive rights and restricting material in the public domain.
He gave examples of recent extensions of copyright terms in many countries, adding that technological protection measures can also be obstacles towards accessing material in the public domain. Together, these developments are resulting in privatization of information.
Chile thus proposed the creation of a worldwide database for the public domain or for materials wherein protection has lapsed.
Elaborating on its second proposal on 'Complementary systems to and in intellectual property', Chile said that IP is not the only tool to foster innovation and proposed that WIPO undertake a study of the relationship between development and alternative mechanisms for fostering creation and innovation.
Ambassador Martis said that already present in many countries are viable, functioning, alternative systems, such as creative commons licences, and free and open source software licences. Chile proposed the creation of an electronic forum for discussion of these issues for a limited time. If there is sufficient interest and critical mass, Members could then create a new forum to continue work.
On its final proposal, on a 'Study for assessing what are the appropriate levels of IP, considering the particular situation in each country, specifically its degree of development and institutional capacity', Chile said the study needs to assess various aspects of IP, including the costs of implementation of rights. As many studies already exist in relation to how much IP contributes to the GDP, perhaps the focus could also be on what percentage of GDP is spent on implementing IPRs.
Colombia reiterated the elements of its paper (doc. No. PCDA/1/3) on 'Development of Agreements between WIPO and Private Enterprises allowing the National Offices for Developing Countries to Access Specialized Databases for the Purposes for Patent Searches'.
It said that developing countries' patent offices have limited resources to carry out patent searches and this reduces capacity to examine for 'prior art' (crucial in determining novelty, a criteria that has to be fulfilled for a patent grant). Thus, WIPO should ensure access to patent databases, with no costs to developing countries, to improve the quality of patents granted.
The US presented its new paper (PCDA/1/4), which builds on its earlier proposal pertaining to a WIPO partnership programme. Its basic premise is that IPR facilitates development, but IPR protection alone cannot bring about development. There are other factors, including developing human capital, liberalizing trade and investment policies, strengthening the rule of law, pursuing stable macroeconomic policies and implementing pro-competitive regulatory policies.
It added that endemic illegal copying and counterfeiting, ineffective government and corrupt practices distort competitive markets, divert resources to non productive uses, and deter investment and technology transfer. It added that although WIPO has an important role to play, each country is responsible for its own economic development.