WIPO Meeting on Development Agenda Report 2

North-South differences emerge in WIPO development meeting
Geneva, 12 April 2005: By Martin Khor and Sangeeta Shashikant (TWN)

Strong disagreement on whether and how to establish a 'Development Agenda' emerged as the World Intellectual Property Organisation (WIPO) began an Inter-sessional Intergovernmental meeting (IIM) taking place here on 11-13 April.

Proponents of a 'development agenda' affirmed that wide-ranging changes wereneeded to the mandate of WIPO, the way its activities are conducted and theprinciples guiding the 'norms' and the negotiations of new treaties, in order thatdevelopment concerns are 'mainstreamed' into the organisation's work and activities.

The main proponents are 14 developing countries, called the Group of Friends ofDevelopment. The presentation of their detailed proposals, made on Monday byBrazil and Argentina, was further supported and elaborated by many members of theGroup.

Several regional groupings of developing countries, including Africa, Asia and LatinAmerica and the Caribbean, welcomed the initiative for a Development Agenda inWIPO and expressed support for parts of the Friends of Development proposals.

Industrialised countries, however, took a different position. The statement by 'GroupB' (comprising developed countries) said WIPO already had a developmentdimension, participation of developing countries in all areas of WIPO was ensured,and WIPO was providing a lot of technical assistance, which could however beimproved.

The developed countries' approach was that strengthening intellectual property rights(IPRs) would contribute to development, that WIPO was doing a good job in that, andthat the focus of a development agenda would be to improve WIPO's technicalassistance activities. They seemed to favour the use of the existing PermanentCommittee on Cooperation for Development (PCIPD) to take up technical assistanceand development issues.

During the debate on the first day, many developing countries stressed that thedevelopment agenda being proposed could not be equated with more technicalassistance.

The initial part of the meeting was marked by a dispute over the agenda, in particularon how the outcome or conclusions of the meeting is to be reported. The draftagenda, prepared by WIPO's secretariat (known as the international bureau), has'Future work' as its fifth item and 'Summary by the Chair' as the final item. Therewas no item on adoption of the meeting's report.

Several developing countries, including Jamaica, Brazil and India, insisted that theadoption of the meeting's report be included in the agenda (as is the normal practicein WIPO meetings) and that the Chair's summary would only be a factual account ofproceedings and not, as the meeting's Chairman Ambassador Rigoberto GautoVielman of Paraguay had indicated, a statement on future work.

The developing countries wanted the results of the agenda item 'Future work' to beincorporated in the report of the meeting, instead of this being the subject of the'Summary by the Chair.'

The Chairman said that a factual report of the Secretariat was going to be the subjectof consultations with the delegations. However, the report to decide on the evolutionof the work of the IIM will be done by the Chair.

Many delegations were not in agreement with the Chairman's suggestion. Argentinasaid that flagging of future work was not the responsibility of the Chair. Brazil saidthat there was no mention in the Agenda of a statement by the Chairman. TheChairman was only to give a factual summary.

After a lengthy debate, it was finally decided that the adoption of the draft reportwould be included as item number 7.

It was also decided that 17 NGOs would be allowed on an ad-hoc basis to attend theIIM on the understanding that this would not create a precedent for future meetings.Earlier, more than a thousand NGOs had signed a statement to WIPO protesting anannouncement that only NGOs accredited to the WIPO General Assembly could bepresent.

Four papers had been tabled for the meeting, and the delegations submitting them(Group of Friends of Development, the US, the UK and Mexico) introduced them.

The paper by the Group of Friends of Development contains proposals for bringingforward the Development Agenda through reviewing the mandate and operations ofWIPO, establishing principles and guidelines for norm-setting, a review and reformof WIPO's technical assistance activities, and establishing a programme fortechnology transfer. (See SUNS #5778 of 12 April 2005).

The US paper proposes a 'WIPO partnership program', an internet-based tool toconnect potential partners and stakeholders (especially donors and recipient countries)on IP related issues and activities, staffed by a new WIPO partnership office.

The UK paper presents aspects of the Independent Commission on IPRs (set up bythe UK government), including an 'overriding message' that IP regimes can andshould be tailored to take into account individual country's circumstances in theframework of international agreements like TRIPS. However, the paper goes on toadvocate further harmonization of patent laws through WIPO. It agreed that WIPO'stechnical assistance needs to be better coordinated and assessed. The PermanentCommittee on Cooperation for Development (PCIPD) could be used for discussionson technical assistance.

The Mexico paper also suggested that the PCIPD be used, to include within itactivities to disseminate the IP system in developing countries, and an assessment tobe conducted. It also suggests that WIPO call a meeting of national patent offices andNGOs to discuss regional mechanisms to conduct the assessment.

At the meeting on Monday, Brazil introduced the proposal of the Group of Friendsof Development or FOD (Argentina, Bolivia, Brazil, Cuba, Dominican Republic,Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, andVenezuela). It said that the paper is not rhetoric or declaratory, but contains concreteproposals that could be the basis of further substantive discussions on how tostrengthen WIPO so that it caters to the large constituency of developing countries.

The FOD see the proposal as a 'platform for substantial debate in WIPO' as it givesthe broad perspective on how the FOD view intellectual property and development.Brazil indicated that the FOD wish to avoid fragmentation of the elements raised inthe proposal, saying it was essential that the different ideas continued to be discussedin its entirety. The document is presented on a 'modular fashion and so the discussioncan be taken on a step by step basis'.

Brazil said that the FOD considered the Development Agenda to be a permanent itemon the agenda of WIPO. It is an agenda with cross-cutting issues and has an impacton all aspects of IP and on all WIPO bodies, thus the FOD does not want its proposalor the issue to be assigned for discussion to only one specific body in WIPO.

Argentina then elaborated on the main points and proposals in the FOD paper,stressing the principles, guidelines and implementation mechanisms being proposed.Among the points stressed were the need for WIPO to have more member-drivenstructures and procedures; the proposal to establish an independent evaluation andresearch office which would evaluate the development impact of WIPO's activities;guidelines and mechanisms for WIPO's work on norm-setting (or establishing oftreaties and rules); guidelines for WIPO's technical assistance, which should beadopted at the next General Assembly; and pro-development approaches totechnology transfer.

Dominican Republic, South Africa, Bolivia and Egypt were among FOD membersthat spoke in support of the Brazil and Argentina statements, and they emphasizedthat establishing a development agenda in WIPO or a development dimension in IPis not the same as technical assistance.

South Africa stressed that it will not support any suggestion that propounds technicalassistance as the development agenda. It called on all Member States to lookcarefully at all the elements of the FOD proposal which is not limited to technicalassistance and hoped the process will proceed on the basis of all elements. It reiteratedthat the commitment to ensure that development is incorporated into WIPO has to beholistic and that WIPO like other UN agencies has to be guided by the broaderdevelopment goals of the UN.

According to the Egypt delegate, the development dimension should be at the core ofall agreements agreed to at WIPO, but this cannot take place if the elements in theFOD's proposal are not considered.

China also agreed that WIPO's development programme should not be limited totechnical assistance and was of the view that the FOD proposal provided anopportunity to study the issue of development.

The Africa Group, coordinated by Morocco, renewed its support in principle for theproposal for the establishment of a Development Agenda for WIPO submitted by theFOD, calling it an ambitious initiative aiming at giving the visibility needed withrespect to the importance of incorporation of the development dimension in WIPO'sprogrammes and activities.

Morocco said the Africa Group shares many of the concerns raised in the proposalconcerning IP and development. However, the proposal can be improved as it did notdeal with some issues of importance to the African countries, notably the issues of IPpertaining to genetic resources, traditional knowledge and folklore.

The Africa Group said it was convinced that IP should not be considered an end initself but a major vector for development. It highlighted many concerns that shouldbe taken into account, including the assessment of the costs and the advantages of theimplementation of IP protection and introduction of norms setting; the need to takeinto account countries' different levels of development and public objectives (such ashealth and biodiversity and access to information and knowledge); and the balanceof rights between rights holders and society.

The Group said the needs of African countries go beyond technical assistanceprogrammes and capacity building. It also stressed the need to facilitate technologytransfer and improving countries' capacity to assimilate technology. It said that it isincumbent on WIPO to endeavor to facilitate this technology transfer to developingcountries, as a specialized agency of the UN and in compliance with the UN-WIPOAgreement.

With regard to the US proposal, Morocco said some aspects complemented the FODproposal. However, it had some reservations regarding the conceptual basis, as theUS proposal assumes the existence of infrastructures enabling access to the internetin all countries. Owing to the digital divide, not all countries possess the same internetfacilities, and the US proposal should be linked with efforts to narrow this digitaldivide.

Benin, on behalf of LDCs, welcomed the different proposals and said that they wouldlike development to be incorporated in all programmes of WIPO.

Singapore on behalf of the Asia group welcomed the proposal of the FOD and saidthat it served as a good basis for a constructive dialogue. Mainstreaming thedevelopment dimension into all activities of WIPO should be a priority for theorganization and this is in line with the continuing focus of work in the UN and otherinternational fora aimed at fulfilling the UN MDGs.

Protection of IP is not an end in itself and there is no 'one size fits all' approach inimplementing IPR commitments. WIPO's work in implementing the DevelopmentAgenda should be undertaken in a balanced manner, guided by unique and peculiarcircumstances in each country and based on public policy considerations and nationaldevelopmental priorities.

The Asia Group said 'the national policy space of each country must be respected,especially when developing countries are asked to assume international obligations.The Development Agenda should take into account any negative impact on the usersof IP, on consumers at large and on public policy in general, not just the interest ofIP owners. It is vital to inject this balance and equity into the various WIPO bodies'.

It expressed it willingness to stand ready to 'contribute to an international intellectualproperty system that is well-balanced and sensitive to the needs of developingcountries and LDCs' as well as to a system that would 'promote research, stimulatecreativity and encourage innovation for the benefit of societies as a whole.'

Singapore also read a statement on behalf of the ASEAN states. It welcomed anyinitiative aimed at contributing towards integrating the development dimension intoall areas of WIPO's work and activities. The statement elaborated on the variousASEAN-WIPO activities that have been undertaken, and praised WIPO for focusingon 'implementing IP in a manner that supports economic growth and wealthcreation.' The statement was seen by several delegates and observers as subtlysuggesting, contrary to the views of the FOD, that WIPO already has adequatelyincorporated the development dimension in technical assistance activities.

Pakistan, associating with the Asia Group statement, said that the many proposalsshould not distract from the core issue which is to ensure that the IP system providesstates at different levels of development with the necessary policy space to meet theirdevelopment needs. Where these flexibilities do not exist, they would need to be putin place.

It added that there is need to examine existing IP instruments and the idea of a'development impact assessment' merits close attention as this would ensure morebalanced norm-setting and facilitate efforts to evolve consensus on norms requiredto meet new challenges.

On behalf of the Latin America and Carribean group (GRULAC), Jamaica said thedevelopment dimension of IP is an integral part of any discourse on IP and standardsetting. While the IP system is seen by many as an important aspect of nationaleconomic policy, the system must address the fundamental concerns of developingcountries in order to be used as a catalyst for development.

'That is why WIPO as a UN agency whose constituents are mostly from developingcountries, and which is charged with the mandate of promoting IP, must address fullythe concerns of developing countries in all aspects of its work.'

IP is not a panacea for development. The WIPO Development Agenda is seeking tostrengthen WIPO's contribution in the area of development. But, it stressed, 'theDevelopment Agenda is not just about strengthening of technical assistance bothquantitatively or qualitatively, it encompasses other important areas including normsetting and transfer of technology.'

Italy, on behalf of Group B (which comprises the developed countries in WIPO), saidit welcomed discussing further the relation between development and IP in WIPO. Itsaid IP has served as a tool for development and further development of theinternational IP system, including harmonization, would lead to a simpler andeasier-to-use IP system.

It added that the development dimension is not new for WIPO and WIPO has ensuredthe participation of developing countries in all areas, and member states are free topursue their objectives in all WIPO treaties and new issues of interest to developingcountries (such as genetic resources) have become an important part of the WIPOagenda.

Group B stressed the technical assistance work of WIPO and said it is time for an'urgent stock taking and evaluation' of WIPO's activities in this field, whether theyaddress the needs of recipient countries and how they can be better coordinated withthe programs of other international organizations.

The Group encouraged the WIPO's Secretariat to conduct a comprehensiveassessment of WIPO's activities in the development field and to report to thePermanent Committee on Cooperation for Development related to IP. Group B sawthis Committee as the 'appropriate forum' to deepen the future debate.

Luxembourg on behalf of the 25 EU member states embraced the UK proposal andwelcomed the US proposal, calling it pragmatic.

Delegations of the US, UK and Mexico, which had also submitted papers, made clearin their statements that they did not support the establishment of new bodies in WIPOto deal with the development agenda.

The US said it saw WIPO's role primarily as protecting IP, as there are other UNagencies that are development agencies. According to the US, the current WIPO legalframework provided ample room to address the concerns of developing countries, andit did not support the setting up of new bodies. If the Member States were not happywith the current bodies, then these bodies could be reviewed.

The US also made it clear to the meeting that it 'would not want to change the WIPO'in a direction that would diminish the support it currently enjoys from the US.

The UK referred to itself as a Friend of Development as well but rejected the idea thatnew bodies had to be created or that there was a need to amend the WIPO Conventionas proposed by the FOD proposal.

According to Mexico, it is the lack of knowledge of the IP system that has generatedtensions in developing countries and so there should be efforts to ensure thatknowledge on IP be disseminated, further saying that creation of other bodies will nothelp.

The US was on the defensive while presenting its proposal on the creation of a'WIPO Partnership Program', an internet-based tool that will 'bring together allstakeholders to match specific needs with available resources and to amplify thedevelopmental impact of intellectual property development assistance', saying thatit was not just about technical assistance. This programme is intended to address theneed for better coordination, to learn the actual needs of developing countries and tomake IP development assistance more relevant to them.

The Swiss delegation expressed surprise over the WIPO Development Agenda sincein its view, this already exists and does not need to be established. Rather than a newprocess, what should be done is to adopt a more pragmatic approach to use theprocesses that already exist and that have borne much fruit so as to reach concretelong lasting results.