In the aftermath of India being forced/coerced to adopt patent law that quite literally kills people as a condition for joining the World Trade Organization (WTO), US representatives at the World Intellectual Property Organization (WIPO) are moving to counter efforts by developing countries and numerous non-government organizations (NGOs) to bring public-interest considerations -- like protecting human health -- to its decision-making.
Specifically, representatives have reportedly been circulating a draft paper that attempts to reframe the problem, arguing that WIPO is already addressing development issues and proposing merely a "WIPO Partnership Program" -- an Internet-based database to bring together "donors and recipients of IP development assistance."
In sharp contrast, the Development Agenda proposed by developing countries and NGOs urges WIPO to move beyond the narrow view that any and all IP protection is beneficial, and choose instead to act strategically to spur economic growth, foster innovation, and help humanity.
Read below for a report on the US paper by Sangeeta Shashikant, published this week in the SUNS (South-North Development Monitor). For background, see WIPO 2.0: A Declaration for the Future of IP.
US draft paper counters Development Agenda in WIPO
By Sangeeta Shashikant, Geneva, 23 March 2005
A draft proposal by the United States titled "Establishment of a Partnership Program in WIPO" for a forthcoming World Intellectual Property Organization (WIPO) meeting on the Development Agenda in April is circulating among some delegations in Geneva.
Stating that WIPO already has a "robust development agenda" in all its work, the draft paper by the US clearly ignores and sidesteps the demands of the proponents of a "development agenda" in WIPO.
Those demands, as elaborated in the Development Agenda proposal by Brazil and Argentina (WO/GA/31/11, dated 27 August 2004) and later co-sponsored with 12 other developing countries, include an amendment to the WIPO Convention (1967), a reorientation of the content of present proposals in treaties now being negotiated at WIPO, the establishment of new pro-development treaties and a change in WIPO's technical assistance activities.
In contrast to this reform programme, the US paper proposes that WIPO continue to "promote intellectual property around the world" as its way of fostering development. Its only new suggestion is the creation of a "WIPO Partnership Program", an Internet-based database to bring together "donors and recipients of IP development assistance."
The proposed 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.
The draft paper is expected to form the basis of the US position at the forthcoming WIPO inter-sessional inter-governmental meeting on the Development Agenda on 11-13 April. The meeting had been mandated by the WIPO General Assembly last October, in which the issue of a WIPO development agenda had figured prominently.
Argentina and Brazil had then presented a formal proposal for the establishment of a Development Agenda for WIPO, in which development would be established in all the work and bodies of the organization. Co-sponsored by 14 countries, it was also supported from the floor by the Asian and African Groups and many individual developing countries.
The US draft paper states that "WIPO already has a robust 'development agenda' in all of its work for a long time, delivering high-quality development activities to Member States on a demand-driven basis." In the past decade, WIPO's budget has tripled, greatly expanding WIPO's role in IP (intellectual property) development assistance. "WIPO has played and must continue to play, an important role in fostering development through the promotion of intellectual property around the world."
The paper puts forward the view that WIPO is already fulfilling its function as a UN agency, thus implying that reform is unnecessary. It says that WIPO's contribution, as a specialized agency of the UN, "to development is made through promoting creative intellectual activity and technology transfer, has a very important, albeit somewhat limited, role to play in fostering economic development and cultural diversity".
WIPO's role as a UN agency and in achieving the UN's development goals is defined narrowly by the paper, which states that WIPO is not a core development agency like the United Nations, UNCTAD or the UNDP. The 1974 Agreement (between WIPO and the UN), "while encouraging coordination and cooperation with the UN and its organs and agencies (in Article 2), also seeks to avoid overlapping or conflicting relationships with other UN bodies that would result in waste or inefficient expenditure of UN resources," says the paper.
"WIPO's contribution to overall the UN development goals is best achieved not by diluting WIPO's role within the UN system but, rather, by strengthening WIPO's intellectual property expertise and its IP-related development assistance."
The US proposal thus advocates that WIPO should concentrate only on promoting intellectual property and should leave development concerns to other UN agencies.
This is clearly a counter to the Development Agenda proposal of Brazil, Argentina and others that made the case that "as a member of the UN system, it is incumbent upon WIPO to be fully guided by the broad development goals that the UN has set for itself, in particular in the Millennium Development Goals.
"Development concerns should be fully incorporated into all WIPO activities. WIPO's role, therefore, is not to be limited to the promotion of intellectual property protection. WIPO is accordingly already mandated to take into account the broader development-related commitments and resolutions of the UN system as a whole."
The Brazil-Argentina proposal asks that the WIPO Convention (1967) be amended to ensure that the "development dimension" is unequivocally determined to constitute an essential element of the Organization's work program. It called on WIPO to act immediately to incorporate a "Development Agenda" in its work programme.
In contrast to the systemic reforms called for by the developing countries, the US paper proposes the creation of a "WIPO Partnership Program". This Internet-based tool will "bring together all stakeholders to match specific needs with available resources and to amplify the developmental impact of intellectual property development assistance" says the proposal.
The proposed partnership program would have two features: a "WIPO Partnership Database" and a "WIPO Partnership Office".
The database would bring together donors and recipients of IP development assistance, and have three sections: a "Partners Section" (that would include IGOs, NGOs, IP offices, private sector groups, universities, charities and others wishing to assist developing countries on IP issues); a section on "Country/Region" (where developing countries and their institutions would state their specific needs for IP assistance requests); and a "Success Section" that lists successful partnership matches.
The partnership office would evaluate requests for assistance and seek partners to fund and execute projects. WIPO's international Bureau would maintain the website and database as well as the Partnership Office.
According to several developing-country officials as well as experts on IP and development, the US draft paper does not address the concerns raised by the proponents of the WIPO development agenda.
Nor does it address the concerns raised in the "Geneva Declaration on the Future of the World Intellectual Property Organization" issued last September by over 500 eminent persons such as scientists, economists, legal experts, consumer advocates, and health activists (including two Nobel Laureates), and in the NGO statement endorsed by 25 organizations in support of the Development Agenda initiative.
The US draft proposal is viewed as an attempt to set aside the Development Agenda initiative in charting a new course for WIPO and incorporating economic, social and cultural development within its mission, instead of its present single-minded pursuit of stronger forms of intellectual property rights without consideration of the negative effects.
A major concern in the developing countries' Development Agenda initiative is the norm-setting activities taking place in various WIPO technical committees, which require developing countries to take on IP standards and obligations that are far beyond what is required under the TRIPS Agreement, at a time when they are still struggling with implementation of their TRIPS obligations.
The developing countries want from WIPO and its many technical committees outcomes that preserve public interest flexibilities and the policy space of Member states to apply IP standards according to their development needs and in a way that enables development.
The Development Agenda proposal also recognizes that access to information and knowledge are essential elements in fostering innovation and creativity in the information age. It thus takes issue with the addition of new layers of IP protection (as is taking place in WIPO), particularly to the digital environment as
this obstructs the free flow of information and hampers efforts to set up new arrangements for promoting innovation and creativity.
The Development Agenda proposal is also critical that existing IP agreements and treaties have failed to promote a real transfer of technology to developing countries and calls for corrective measures, including clear provisions on technology transfer to be included in treaties currently under negotiation in WIPO.
The Development Agenda also called for WIPO's technical assistance programme to ensure that national IP laws are tailored to meet each country's level of development and that developing countries are trained to the use of the flexibilities (oriented to public objectives) in existing IP agreements.
According to experts on IP and development, WIPO would need to be reformed in two ways, if it is to incorporate the "development dimension" into its activities. The first aspect includes reviewing existing activities and treaties that have been
negotiated or that are on the negotiating table in WIPO to ensure that these treaties do not restrict or prevent developing countries from having access to tools such as information and technology that they need to develop.
The review should include the WIPO Copyright Treaty (WCT) and the proposed Substantive Patent Law Treaty and the Treaty on the Protection of Broadcasting Organizations, which are now being negotiated.
The other aspect of a Development Agenda, according to the experts, would be a "positive agenda" for development, which could include the creation of new treaties, for example, on access to knowledge, on access to technology and on minimum limitations and exceptions in relation to copyright and patent protection.
Several developing-country officials, as well as independent experts and NGOs involved in IP issues, are of the view that the forthcoming April meeting provides developing countries with a vital opportunity to advance their development agenda.
However, as the US draft proposal shows, it will be an uphill battle to convince the major developed countries of the need for even a little change, let alone a systemic reform in WIPO.