By Tove Iren S. Gerhardsen
Member countries of the World Intellectual Property Organization (WIPO) discussing proposals to strengthen WIPO’s orientation towards development this week are moving closer to a draft text they could report to the September General Assembly.

But there are still major disagreements about the content of such a text as well as some concern about the process, according to participants.

The 19-23 February special session of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA) is working to boil down to one text the 111 proposals previously submitted by member states on how WIPO may better reflect the concerns of developing countries. The WIPO Development Agenda idea has been driven by the Friends of Development, a group of 15 developing countries. This meeting is focusing on first 40 proposals (referred to as “Annex A”).

Discussions are based on a General Assembly-mandated matrix of the proposals, which shows which are overlapping, identifies action points versus general principles, and identifies what WIPO is already doing in the respective areas, sources said (IPW, WIPO, 20 February 2007).

PCDA Chair Ambassador Trevor Clarke of Barbados proposed that the WIPO regional groups could help focus the proposals which are grouped by subject matter in the matrix (referred to as clusters A to F).

The African Group (chaired by Algeria) is in charge of technical assistance and capacity building (cluster A); Kyrgyzstan on norm-setting, flexibilities, public policy and public domain, the Asian group (chaired by Bangladesh) and China on technology transfer, information and communication technology and access to knowledge (cluster C); the Central European and Baltic States (chaired by Poland) on assessments, evaluation and impact studies (cluster D); group B of developed countries (chaired by Italy, vice-chaired by the United States) on institutional matters including mandate and governance (cluster E), and the chair will do cluster F (one proposal). The coordinators of each regional group are taking the lead for the groups in this effort.

Kyrgyzstan, who volunteered, belongs to the Group of the Caucasian, Central Asian and Eastern European but the group, including Russia, said Kyrgyzstan would do this on its own. Kyrgyzstan’s voluntary involvement in the norm-setting issues, which are at the core of the Friends of Development proposals, caused a reaction, sources said. Kyrgyzstan was the source of many of the 40 proposals under consideration this week, and has been seen by some as adversarial to developing country interests in this process, two sources said. A source close to the negotiations said the chair would work closely with the Kyrgyzstan official.

An official from the Friends of Development group told Intellectual Property Watch that the structure of work for the week could have been better defined before the meeting as its members also are parts of regional groups, but that the group overall is “positive” about the process this week.

On 22 February, the African Group discussions with delegates on language reached a sixth draft as its cluster had been discussed first and it prepared an initial paper. The chair said sticking points include a proposal to set up a WIPO trust fund or voluntary fund for developing and least-developed countries, and a proposal on technical assistance to which the Friends of Development suggested adding that it promote “a development-oriented” IP culture. The chair told Intellectual Property Watch on 22 February that they were still in the process of negotiation on the African paper, but said, “I think it will fly.”

Kyrgyzstan’s paper, with three points, was circulated as was Poland’s paper with four points, on 21 February, and the one from Italy (with some brackets) and Bangladesh/China followed on 22 February. The coordinators were to consult on these on 22 February, and present the latest drafts by the afternoon. Poland said it had received the comments on cluster D and it “does not seem very contentious.”

The Kyrgyzstan official told Intellectual Property Watch that he was still consulting and hoped to have the draft ready by 23 February. He told delegates that he had received some general comments and some “substantial proposals.” One developing country official told Intellectual Property Watch that this was the most controversial paper and would likely generate a debate on the issue of the protection of the public domain. The official doubted there would be agreement on this at this meeting.

The chair said that the reason for this division of work was to “narrow the differences as fast as possible.” The group coordinators take the views expressed in the plenary meeting into account as well as hold meetings with other groups and particularly the opponents of various proposals. The idea is not to leave out any proposal, the chair said, but to indicate where there is agreement and then the chair will further close the gaps.

Key Issues Under Debate

In terms of content, among the hot issues are policies on anti-competitive practices, the public domain, transfer of technology and flexibilities in international agreements. Some debate centred on moving proposals from “general principles” to “action” items in the matrix.

A number of countries, including the Friends of Development, the African Group and the Asian Group sought to move a proposal which states, “consider the protection of the public domain within WIPO’s normative process,” to be moved to an action item.

Chile said that a strong public domain is not in conflict with intellectual property rights as more IP depends on a sound public domain. Colombia was opposed and argued that intellectual property rights do not reduce the public domain. Many developed countries said they could agree to WIPO’s role in preserving the public domain, sources said. Library groups attending the meeting have made a strong case for limitations and exceptions.

On technology transfer, South Africa said technical assistance in developing countries too often focuses more on protection and not enough on technology transfer. Brazil supported a WIPO-led exploration of initiatives and reforms to ensure the transfer of technology fully benefits developing countries. Canada was sceptical as this had to be done by the private sector and the European Union and the United States opposed the word “ensure” in the proposal, sources said. The United States warned against overlapping work with World Trade Organization (WTO).

There was also disagreement on whether WIPO should get involved in competition policy by “promoting measures that will help countries combat IP related anti-competitive practices,” as the proposal states. Chile, Brazil (which wanted it to be “actionable”) and China were among the supporters. The United States said this belongs in other agencies (such as the United Nations Conference on Trade and Development), pointing out that there are no fully agreed norms on international competition policy, a source said. A developed country official told Intellectual Property Watch that WIPO studies and analysis of the issue would be welcome but there are concerns about “opening a Pandora’s box” that would undermine the entire concept of IP.

The nongovernmental organisation Consumers International said that Articles 6, 7, 8, 31.k as well as Article 40 of the TRIPS agreement “frame WTO members’ policy options in using competition policy safeguards.” It called for WIPO reports on this as well as on the benefits of a rich public domain.

Side Event Touts Benefits of IP for Indian Film Industry

Separately, on 20 February the Creative and Innovative Economy Centre (CIEC) at George Washington University Law School (US) hosted a roundtable luncheon entitled, “Bollywood Rising – IP and economic growth in the Indian film industry.” CIEC Research Associate Bertrand Moullier discussed his study, Whither Bollywood?, and new technology in India that delivers films directly to theatres via digital satellite systems. This would make IP protection easier and piracy more difficult, and Moullier said it would not hinder access for the public as most people in India could afford visiting movie theatres. The movies would also go on to become available in the public, he said.

Stronger IP protection would lead to fewer but better-quality films in India, he said. The argument that India’s film industry has grown exactly because there is little IP protection was “not the reality,” and insulting to creators, he told Intellectual Property Watch. Moullier said this was “patronising” and one way of ensuring that the cultural voices of these people would never be heard at places such as the Sundance Film Festival, a well-known annual US film event.

Tove Iren S. Gerhardsen may be reached at tgerhardsen@ip-watch.ch.