IP Justice Recommendations for the 2007 WIPO General Assembly on the WIPO Development Agenda
In 2004, at the General Assembly of the WIPO, two member nations Brazil and Argentina submitted proposals for establishing a Development Agenda for WIPO. This proposal found wide support from most member nations to WIPO. As you all know, the proposal for a Development Agenda is mainly centered on the idea that development is the key to success, especially for the developing nations and the Least Developed Countries (LDCs).
We know that a profound “knowledge gap” as well as a “digital divide” separates wealthy nations from the poorer ones. The Development Agenda is based on the premise that higher protection for intellectual property, without any focus on improving developmental structures within these countries would only worsen this situation and be detrimental in the long run. This is true because an absence of strong internal, national IP protection will cripple developing nations in an international and global economy.
There is an imminent need therefore, to “integrate development dimensions into policy making for intellectual property protection.
There are 45 recommendations made by the member nations report to the upcoming WIPO General Assembly in September 2007 (On June 15, 2007, at a closed door meeting of the WIPO member nations, 21 recommendations were made to the Development Agenda. These are encoded in Annex B (see below). 24 more recommendations were adopted at the meeting held on February 24, 2007. These are encoded in Annex A (see below).) Both sets of recommendations are mainly categorized into five separate groups: (Cluster A) Technical assistance and Capacity building; (Cluster B) Norm-Setting, Flexibilities. Public Policy and public Domain; (Cluster C) Technology Transfer, Information and Communication Technology (ICT) and Access to Knowledge; (Cluster D) Assessments, Evaluation and Impact Studies; (Cluster E) Institutional Matters Including Mandate and Governance.
This policy paper urges the WIPO nations to adopt these 45 recommendations at the WIPO General Assembly in September 2007.
An overview of the proposal and its impact
ANNEX B – DRAFT AGREED PROPOSALS (15 June 2007)
CLUSTER A: TECHNICAL ASSISTANCE AND CAPACITY BUILDING
1. A national IP institutional capacity is almost essential for a nation’s development and protection of local and national IP. Clause one recognizes this need and focuses on providing adequate assistance to developing nations and LDCs, in the form of infrastructural development and development of national facilities. Such assistance is aimed at promoting and maintaining a fair balance between IP protection and the interests of the public. Clause one recommends that such assistance should be extended not only on a national basis, but also a regional and sub-regional basis to organizations dealing with IP.
2. Again recognizing the importance of a strong national protection for domestic IP, especially in the developing and LDCs, clause two promises specific and tailored assistance to member states in order to strengthen their national protection for domestic creations, inventions, and infrastructural innovations.
3. Clause three seeks to ensure long-term dedication to the mandate of the development agenda, by requiring WIPO to take measures to introduce and maintain development considerations in its substantive and technical assistance activities and debates.
4. In keeping with its commitment to better development issues faced by member nations, WIPO will steer its legislative assistance to become more development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs. This clause is extremely important in light of the fact that different nations, especially the LDCs are all at different stages of development and require specific assistance that is tailor made to suit their needs. Another important aspect of this clause is that it requires a strict time limit for completion of assistance activities. This will ensure more reliability and transparency to the assistance activities and will benefit member nations on a need-to basis.
5. WIPO will provide assistance and advice to developing nations and LDCs on the initiation, implementation, and operation of rights and obligations under the TRIPS agreement to the WTO. The TRIPS agreement is a corner stone of international IP rules and a through understanding of this agreement is essential for all member states, especially developing countries and LDCs because TRIPS allows much flexibility that will help member nations is structuring and streamlining their national IP protection capabilities.
CLUSTER B: NORM-SETTING, FLEXIBILITIES. PUBLIC POLICY AND PUBLIC DOMAIN
1. Clause one requires that WIPO take into account the flexibilities inherent in international IP agreements like the TRIPS, especially in favor of developing nations and LDCs, when partaking in norm-setting or rule making activities.
2. WIPO provides a forum for international policy debate and development of legal mechanisms and practical tools concerning the protection of traditional knowledge (TK) and traditional cultural expressions (folklore) against misappropriation and misuse, and the intellectual property (IP) aspects of access to and benefit-sharing in genetic resources. Clause two recognizes the importance of protection of such traditional knowledge and urges the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC), to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments.
3. We know that knowledge and the ability to learn and teach is what differentiates us as a species. Knowledge is essential in all activities participated in by humans: freedom, politics, law, growth, and development personal or otherwise. The objective of the Access to Knowledge (A2K) movement and the A2K treaty is to protect, enhance, and expand the availability of knowledge and its transfer to developing countries. A2K is essential especially when it relates to medicines, patents, software etc. Clause three of cluster B pledges its support to the A2K movement by requiring discussions on how to further facilitate access to knowledge and technology for developing countries and LDCs, specifically in a manner that fosters creativity and innovation and strengthens such existing activities within WIPO.
4. Public domain is that body of knowledge and innovation (especially creative works) to which no person or legal entity can establish or maintain a proprietary interest. Information in the public domain is considered part of a common cultural and intellectual heritage, one that maybe used or exploited by anyone, whether for commercial or non-commercial purposes. Protection of such public domain information is essential, especially for developing and LDCs, because this could be the bedrock on which these countries improve their social and economic conditions. Clause four of this cluster recognizes the importance of a robust public domain and seeks to promote legislative and rule-making and norm-setting activities related to IP that support a public domain in WIPO’s member States. Clause four also makes suggestions for preparing guidelines for member nations that would assist them in identifying subject matters that have fallen into the public domain within their respective jurisdictions.
5. Clause five suggests that WIPO will conduct informal and open and balanced consultations before any new norm-setting activities are initiated. This clause is essential because it promotes goodwill and provides a transparency to the WIPO norm-setting processes. Additionally, by meeting with member states, the norm-setting committee will have a better understanding of the specific needs of each member nations and a discussion with experts from member nations will provide the committee with innovative solutions that can alleviate the problems facing the member nations.
6. In its Millennium declaration, the UN promised to “create an environment – at the national and global levels alike – which is conducive to development and to the elimination of poverty. It also recognized that “success in meeting these objectives depends on good governance within each country. It also depends on good governance at the international level and on transparency in the financial, monetary and trading systems. It is important that we continue to remember this promise and cater our policy making and norm-setting activities in a manner that promotes adherence to this promise. Clause six promotes this idea by requiring that the WIPO Secretariat should address in its working documents for norm-setting activities issues such as: a) safeguarding national implementation of intellectual property rules b) competition c) IP-related transfer of technology) d) potential flexibilities, exceptions and limitations for Member States and e) the possibility of additional special provisions for developing countries and LDCs. Each of these considerations is aimed at ensuring increased protection of IP while fostering development activities within member nations.
7. The Antitrust Guidelines for the Licensing of Intellectual Property (“IP Guidelines”), issued jointly by the FTC and DOJ in 1995, describe the agencies’ current complementary approach to applying antitrust principles in cases involving intellectual property rights. An important principle adopted by the guidelines is that intellectual property licensing should be pro-competitive. This will allow agencies and firms to combine complementary factors of production by integrating complementary intellectual property. Ultimately, consumers and member nations (especially developing nations and LDCs) will benefit from pro-competitive licensing because it helps expand availability to intellectual property and increases the speed and reduces the cost of bringing innovations to market. Clause seven is a tribute to this principle adopted by the IP guidelines because it urges WIPO committee to consider factors to better promote pro-competitive IP licensing practices, particularly with a view to fostering creativity, innovation and the transfer and dissemination of technology to interested countries, in particular developing countries and LDCs.
CLUSTER C: TECHNOLOGY TRANSFER, INFORMATION AND COMMUNICATION TECHNOLOGY (ICT) AND ACCESS TO KNOWLEDGE
This cluster deals mainly with actual transfer or sharing of knowledge and information, especially to developing countries and LDCs. The recommendations included in this cluster call for a ground breaking initiative within WIPO, which previously considered transfer of information as a threat to protection of IP. The recommendations made here allow member nations to protect their intellectual property while developing means by which to foster development and protection of IP in developing and LDCs through transfer of knowledge.
1. Clause one call for WIPO to introduce and maintain discussions on IP related technology transfer issues, like improving access to patent information to countries that stand to enormously benefit socially and economically. It also calls for inclusion of discussions on IP-related technology transfer issues within the mandate of appropriate WIPO committees and nor-setting divisions.
2. Clause two states that WIPO should cooperate with other intergovernmental organizations to provide to developing countries and LDCs, advice on how to gain access to and make use of IP-related information on technology, particularly in areas of special interest to the requesting parties. This is an important service for developing nations, because it helps them air and address national issues and gain from the expertise of developed nations.
3. Clause three is similar to clause one in that it promotes transfer of technology and knowledge. Clause three specifically urges the WIPO committee to undertake activities and initiative that allow transfer of technology to developing nations, especially related to better access to publicly available patent information. It is key to not that this transfer of knowledge does not in any way seek to reduce protection of innovative intellectual property. It only seeks to level the playing field by making available to developing nations, information that is on the public domain.
4. Clause four recommends that there be, within WIPO an opportunity for exchange of national and regional experiences and information on the links between IP rights and competition policies. Again, this exchange will foster faster and effective means of issue spotting and issue solving because it draws on the experience and expertise of other member nations.
CLUSTER D: ASSESSMENTS, EVALUATION AND IMPACT STUDIES
This cluster focuses on WIPO’s research, data gathering and information dispersion techniques.
1. Clause one recommends that member nations be coaxed to exchange experiences and ideas on open collaborative projects such as the Human Genome Project as well as on IP models. As we all know, the Human Genome Project and many similar initiatives are not secular to one nation. Simultaneous research initiatives are undertaken in laboratories across the world. And therefore, a collaboration on information between member states will only foster better research and understanding of ideas and will significantly reduce redundancy in research. Such sharing of ideas will also lead to early development of pharmaceuticals and drugs and cures for many life threatening diseases.
2. Clause two suggests that WIPO may conduct studies and research on the protection of intellectual property and identify all possible links and impacts between IP and development. Such an initiative will only help understand and solve the specific developmental concerns of developing and LDCs. It will definitely help us adhere to the principles and promises of the UN Millennium Declaration.
3. Clause three calls for an initiative to strengthen WIPO’s capacity to perform objective assessments of the impact of the organization’s activities on development. This clause seeks to create a system that will continuously monitor the actual impact of the proposed recommendations on development issues faced by member nations. This feedback is essential as it will enable WIPO to adequately tailor its future policies under the development agenda.
CLUSTER E: INSTITUTIONAL MATTERS INCLUDING MANDATE AND GOVERNANCE
1. Clause one recommends that the committee deliberate on and seek ways to improve WIPO’s role in finding partners to fund and execute projects for IP-related assistance. Funding and execution of projects must be done in a manner keeping with mandate of the other provisions recommended in the development agenda and should not prejudice ongoing WIPO activities and projects.
2. Clause two seeks to foster a sense of belonging and camaraderie among member nations to the WIPO. For the continued success of the development agenda, it is necessary that there be a high degree of transparency in the projects and initiatives undertaken by the WIPO committee. Accordingly it is important that all member nations be allowed an opportunity to participate in policy making and norm-setting activities. This is also important because the essence of the development agenda is to improve the development conditions for the developing nations and the LDCs. If they are not allowed to voice their needs and concerns then the mandate of the agenda is lost. Clause 2 suggests that all norm-setting meeting and other important meetings for WIPO be held in Geneva to allow all member nations to participate. It also allows for a different venue so long as member states are informed through official channels, well in advance, and consulted on the draft agenda and program.
Annex A – DRAFT AGREED PROPOSALS (February 24, 2007)
Cluster A: Technical Assistance and Capacity Building
1. Clause one recommends that any WIPO technical assistance should be development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs. Furthermore it requires that the different levels of development of member states should be taken into account and the activities should include time frames for completion.
2. Clause two is extremely important because it seeks to provide valuable assistance to WIPO through donor funding. It seeks to further establish Trust-Funds or other voluntary funds within WIPO specifically for LDCs, while continuing to accord high priority to finance activities in Africa through budgetary and extra-budgetary resources. It seeks to promote foreign interest in these developing countries by promoting the local legal, commercial, cultural, and economic exploitation of intellectual property in these countries.
3. Clause three attempts to sustain the mandate of the development agenda on a lang term basis. It suggests that WIPO increase its financial and resource commitments to technical assistance programs that promote development oriented IP culture. It further suggests that introducing IP at different academic levels and generating greater awareness of IP issues among the common people, especially in developing nations and LDCs will help promote the goals of the development agenda.
4. Place particular emphasis on the needs of SMEs and institutions dealing with scientific research and cultural industries and assist Member States, at their request, in setting-up appropriate national strategies in the field of intellectual property.
5. WIPO shall display general information on all technical assistance activities on its website, and shall provide, on request from Member States, details of specific activities, with the consent of the Member State(s) and other recipients concerned, for which the?activity was implemented.
6. WIPO’s technical assistance staff and consultants shall continue to be neutral and accountable, by paying particular attention to the existing Code of Ethics, and by avoiding potential conflicts of interest. WIPO shall draw up and make widely known to the Member States a roster of consultants for technical assistance available?with WIPO.
7. Promote measures that will help countries deal with IP-related anti-competitive practices, by providing technical cooperation to developing countries, especially LDCs, at their request, in order to better understand the interface between intellectual property rights and competition policies.
8. Request WIPO to develop agreements with research institutions and with private enterprises with a view to facilitating the national offices of developing countries, especially LDCs, as well as their regional and sub-regional IP organizations to access specialized databases for the purposes of patent searches.
9. Request WIPO to create, in coordination with Member States, a database to match specific IP-related development needs with available resources, thereby expanding the scope of its technical assistance programs, aimed at bridging the digital divide.??Cluster B:
Norm Setting, Flexibilities, Public Policy and Public Domain
1. Norm setting activities shall:?- be inclusive and member driven;?- taken into account different levels of development;?- take into consideration a balance between costs and benefits;?- be a participatory process, which takes into consideration the interests and priorities of all WIPO Member States and the viewpoints of other stakeholders, including accredited inter-governmental organizations and non-governmental organizations; and?- be in line with the principle of neutrality of the WIPO Secretariat.
2. Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.
Cluster C: Technology Transfer, Information and Communication Technologies (ICT) and Access to Knowledge.
1. Clause one requests WIPO to 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 (WSIS), also taking into account the significance of the Digital Solidarity Fund (DSF).
2. Clause two is similar to other clause discussed before, in that, it seeks to explore IP-related policies and initiatives necessary to promote the transfer and dissemination of technology to the benefit of developing countries. It urges the committee to take appropriate measures to enable developing countries to fully understand and benefit from different provisions, pertaining to flexibilities provided for in international agreements, like the TRIPS agreement.
3. Clause three seeks to encourage member states, especially developed countries, to develop programs with their research and scientific institutions to enhance and facilitate cooperation and exchange of research and development with similar institutions in developing countries and LDCs.
4. The Information and Communication Technology program (ICT) is a functional body of WIPO that focuses on for growth and development of communication technology. Clause four recommends that WIPO provide for discussions focused on the importance of IP-related aspects of ICT, and its role in economic and cultural development, with specific attention focused on assisting Member States to identify practical IP-related strategies to use ICT for economic, social and cultural development.
5. To explore supportive IP-related policies and measures Member States, especially developed countries, could adopt for promoting transfer and dissemination of technology to developing countries.
Cluster D, Assessment, Evaluation and Impact Studies
1. Clause one recommends that WIPO develop an effective yearly review and evaluation mechanism for the assessment of all its development-oriented activities, including those related to technical assistance. This clause calls for the committee to create a detailed system of evaluation, setting goals and benchmarks that the WIPO activities must meet within specified time periods. Only an structured and monitored system of checks and balances will really promote the development agenda.
2. Clause two is extremely important because it requests WIPO to conduct a study on constraints to intellectual property protection in the informal economy. The recommendation is made with a view to assisting member nations in creating substantial national programs and building a strong national IP protection capability. The recommendation suggests that the study take into account, among other factors, the tangible costs and benefits of IP protection, especially in relation to creation and availability of employment.
3. Clause three builds on clause 2, in that, it requests WIPO to undertake new studies to assess the economic, social and cultural impact of the use of intellectual property systems in developing nations and LDCs.
Cluster E: Institutional Matters including Mandate and Governance
1. Clause one is specifically aimed at helping developing nations, especially African countries, combat the very real and increasingly prevalent issue of brain-drain. Most developing nations loose their highly intellectual elite to developed countries. Brain drain can have devastating long term impact on a developing nation. Clause one in this cluster requests WIPO to assist these developing countries in cooperation with relevant international organizations, by conducting studies on brain drain and make recommendations accordingly. Such studies will allow these nations to change internal policies and laws and provide specific incentives to attract the intellectual elite.
2. Clause two requests that WIPO intensify its cooperation on IP related issues with UN agencies like UNCTAD, UNEP, WHO, UNIDO, UNESCO and other relevant international organizations, especially WTO, in order to strengthen the coordination for maximum efficiency in undertaking development programs. We call all learn from each others’ experiences and work together to make the development agenda a success.
3. Clause three urges the committee to conduct a review of the current WIPO technical assistance activities in the area of cooperation and development. This exercise will allow the committee members to honestly evaluate the progress of the promise of the development agenda and will maintain a system of checks and balances.
4. Clause four seeks to ensure wider participation of civil society at large, i.e., the general public and their needs in structuring WIPO activities, in accordance with its criteria regarding NGO acceptance and accreditation.