WIPO: Slow discussions on categorising Development Agenda issues

The WIPO meeting on a Development Agenda was moving slowly towards how to categorise the many proposals presented by members, so that further discussion can be held on how to treat these proposals.

A list of six categories was presented to the WIPO Provisional Committee on Proposals to Establish a WIPO Development Agenda (PCDA) by the Chairman, Ambassador Rigoberto Gauto Vielman of Paraguay on Thursday (23 February).

The categories presented were: (A) Technical assistance and capacity building; (B) Norm-Setting, flexibilities, public policy and public domain; ( C) Technology transfer, information and communication technology (ICT) and access to knowledge; (D) Assessment, Evaluation and Impact Studies; (E) Institutional Matters including mandate and governance; and (F) Other Issues.

The Chairman said the issues were not in any order of priority. He asked delegations to list their proposals under whichever category they chose. He said that he intends to work before the next PCDA meeting (26-30 June) to identify proposals on which there is agreement and those which are more controversial, so that there is some consensus at the next meeting.

A document containing all the proposals, placed under the categories, is scheduled to be given to delegates on the afternoon of Friday, the last day of the meeting. Delegates were uncertain how the discussions will proceed at the next meeting.

Several developing countries were frustrated that the pace of discussions has been slow, with little progress in taking the Agenda forward, in view of the limited time left (only five days at the next PCDA meeting) to produce recommendations for the WIPO General Assembly.

Some developed countries appeared to be blocking forward movement. In particular, the US suggested that proposals that did not enjoy consensus should not be taken forward. It was responding to a presentation by Argentina on the paper by the Group of Friends of Development (GFOD) that proposed structuring the discussions in terms of points that could be acted on in the short, medium and long term.

The US comment was taken by many as a strong indication that it did not want the Development Agenda to continue.

The US also asked that the WIPO Secretariat inform Members about which proposals can be implemented within the WIPO budget so that members can make informed decisions.

Argentina responded that WIPO is made up of its Members States and the Secretariat takes direction from member states and therefore the Secretariat is not in a position to make this decision. It added that the WIPO Budget Committee should decide on what WIPO is able to implement. Members should take a political decision, then flexibility can be shown with regards to the funds.

During the discussion on Thursday on "the way forward", the Ambassador of Argentina proposed that the structure of issues suggested by the Chairman be done in a way that could compare the various proposals within the same topic. This could help to identify the common threads between the proposals. This proposal was supported by Brazil, Pakistan and Venezuela.

The Chairman however did not favour this approach, stating that a simple document should be the starting point.

However, the format suggested by Argentina was distributed to Members. It contains four separate tables, with 8 columns (with the names of the 8 groups/countries that had submitted papers) in each table.

The four tables had headings of "Mandate and Governance"; "Norm setting/Policy space/public domain"; "Technical assistance and capacity building"; and "Technological transfer, related competition policies and access to knowledge", with the columns meant to contain summaries of the proposals from various countries/groups on these topics.

Earlier, the meeting discussed the US and the GFOD proposals. Argentina, on behalf of the GFOD, said that their document aimed to promote consensus on how to move forward. It said that most of the proposals are interlinked and that while members may have different points of view, there is common ground that unites all the proposals. These could be grouped under the 6 issues highlighted in the GFOD paper. (See SUNS #5969, 20 February 2006).

It added that the common elements of various proposals can now be identified, and stressed that Members should be able to adopt points for immediate action in the short, medium and long term.

Austria, on behalf of EU, said that it supported in principle organising work around themes without prejudice to positions on the substantive discussion.

The US said that it agreed that work must be structured and rationalized, but did not agree that the work should be seen in terms of short, medium and long term. It said that the mandate is to finish discussions with recommendations, some of which may be short, medium or long term but the PCDA does not need to identify them as such. It said proposals that enjoy broad support can be brought forward while proposals that do not enjoy broad support should be dropped.

The US also earlier presented its new paper, many aspects of which were criticized by the developing countries. There was extensive debate over item 6 of the US paper which proposes that the WIPO Advisory Committee on Enforcement should discuss and analyse the relationship between the rates of counterfeiting and piracy of IP and technology transfer, foreign direct investment and economic growth, and that the WIPO Secretariat could assist in the collection of data on piracy rates.

Several developing countries were of the view that enforcement of IP was a national issue and outside the mandate of WIPO, and it did not belong to the development agenda.

The US paper contains six parts: (1) IP's role in development; (2) WIPO's role in development; (3) Baseline national surveys for economic growth; (4) Global economic contribution of creative and innovative industries; (5) Technology and economic growth: challenges and opportunities; and (6) Counterfeiting and IP piracy.

Japan supported the US paper. Austria, on behalf of the EU, said that it agreed with the observation that quantitative and qualitative stocktaking should be undertaken. It also believed that more discussion on proposal 6 was needed on the relationship between enforcement and the rates of counterfeiting, piracy and economic growth. Australia said that it saw significant merit in the US proposal on a WIPO partnership program as well as in the stocktaking exercise.

Commenting on the US paper, Brazil said conducting national baseline surveys of economic growth and examining the relationship between IP and piracy are outside the WIPO mandate. Also, counterfeiting is not an IP and development issue.

Commenting on the first part of the paper on IP's role in development, Brazil acknowledged that the IP system alone cannot bring about development, but IP systems can hinder development. It said that the US favoured pro-competitive policies and in its view IP legislation is not pro-competitive, and the way IP is being applied in developing countries may lead to anti-competitive practices.

Referring to references in the US paper to "endemic illegal copying" and "corrupt practices distort competitive markets", Brazil said that it did not think that illegal copying is endemic to any country and corruption is a global problem and WIPO has no mandate to enforce IP or to deal with corrupt practices.

It was also concerned that the proposed WIPO partnership programme will lead to WIPO mediating between private companies and patent offices. Members wanted a more member- driven technical assistance and if it is outsourced, how will recipient countries have more say, Brazil asked. Further, many of the donors will be IP holders themselves without concern about public interest and public policy goals.

Commenting on other parts of the US paper, Brazil said that technology transfer should be favoured by the IP system which itself can promote technology transfer, for example, through adequate dissemination of patent information. Protecting the public domain can also help technology transfer. It added that WIPO does not have an enforcement mandate.

Pertaining to "Global economic contribution of creative and innovative industries", it said that WIPO is not an organization that is geared to economic surveys which are complex matters.

Regarding the US proposal on "Technology and Economic Growth", Brazil said that if WIPOnet is to be a contribution, more information on it is needed, because apparently there has not been any budgetary resources for the continuation of the WIPOnet and there are doubts whether it is functional.

On the US proposal on Counterfeiting and Intellectual Property Piracy, Brazil said that the point of the Development Agenda is to determine what is an adequate level of protection for each country and it should not be based on "prescriptive generalizations".

It added that piracy and counterfeiting are not development issues, though they may be global phenomena. What is piracy and counterfeiting will depend on what the law says and how it is applied. WIPO also does not have an enforcement mandate.

Argentina said the US proposals were narrow in its vision of what the Development Agenda is. The proposals maintain the status quo without providing advantages quantitatively or qualitatively. The US paper seems to advocate efforts at the national level without providing a framework at the multilateral level that takes account of the needs of all members.

On the US proposal on counterfeiting and IP piracy, Argentina said it was a universal problem, quoting a news item on how New York was trying to deal with counterfeiting. It said that this was thus not only a phenomenon in developing countries.

Responding to the comments, the US said that there are some proposals (by others) that cannot be supported as they are based on the premise that WIPO has not addressed development concerns and that IP hinders development. It repeated that only those proposals that have consensus should be taken forward.