By Tove Iren S. Gerhardsen
World Intellectual Property Organization (WIPO) members this week are engaged in intensive negotiations on proposals to change WIPO’s activities and mandate to include more development issues. The Group B of developed countries, particularly the United States, has taken a hard line against proposals relating to flexibilities in World Trade Organization intellectual property law, and WIPO rulemaking related to genetic resources, traditional knowledge, the public domain, and access to knowledge, according to officials.

The 11-15 June meeting of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA) is expected to discuss six papers, or “clusters,” of similar proposals, and pass on recommendations to the September annual General Assembly. But work on cluster B on “Norm-setting, flexibilities, public policy and public domain” proved to be difficult.

This cluster originally contained seven proposals, with four more added during the week, and was coordinated by the African Group, chaired by Algeria. Gradual progress has been made on tough topics and as of late on 12 June, there appeared to be compromise agreements on several key issues, but not on the final four new proposals, which the African coordinator said met with strong disagreement. These were added by the Group B developed countries and the Friends of Development, who initiated the Development Agenda process.

As of late 12 June, discussions had moved into the next clusters, C and D, according to some sources.

Agreed passages in cluster B include a proposal to urge WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) to “accelerate the process” on the protection of these issues “without prejudice to any outcome, including the possible development of an international instrument or instruments.” The original proposal was to negotiate such an instrument.

Agreement has been reached on securing a robust public domain in WIPO norm-setting activities, consult nongovernmental organisations (NGOs) and experts.

But there still was some disagreement regarding the internationally agreed development goals and background versus working documents in the WIPO activities, sources said. There was also some disagreement regarding licensing practices, the draft paper said.

One paragraph deals with “flexibilities in international IP agreements,” saying that WIPO should take these into consideration in all its activities, including norm-setting. The Asian Group wanted to check whether this was acceptable, as it did not mention “access to food and medicines,” which had been in its original proposal.

Another paragraph deals with possible new initiatives and strengthening existing mechanisms related to technology transfer and “access to knowledge,” but this term was still in brackets as of 12 June, reflecting disagreement, at the request of Group B, sources said.

The four additional proposals that were in cluster B are not new, as they are all found in the original paper, or matrix, of all members’ proposals prepared by the General Assembly chairman in January.

One deals with “best practices and economic growth: Compile and disseminate the ‘best practices’ of member states related to fostering the development of creative industries and attracting investment and technologies.”

The second calls for, “Increasing understanding of the adverse effect of counterfeiting and piracy on economic development” through the WIPO Advisory Committee on Enforcement. Both of these were proposed by Group B.

The Friends proposed one related to exchanging experiences on open collaborative projects for the development of public goods such as the Human Genome Project and open source software, and one related to safeguarding, “in WIPO the development-oriented principles and flexibilities contained in existing agreements, such as the TRIPS Agreement.”

Weaker TRIPS Language Agreed

The fifth proposal in cluster A, “Technical Assistance and Capacity Building” was agreed to on 11 June after discussions on TRIPS flexibilities caused some discussion, according to officials. The language now reads:

“Within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs, on the implementation and operation of the rights and obligations, and the understanding and use of flexibilities contained in the TRIPS Agreement.”

The original proposal, added by the African Group but drawn from the January matrix of proposals, included specific references to sections in TRIPS, and did not include both “rights” and “obligations.” It also made references to the Doha Declaration from the WTO ministerial meeting in 2001 and the language, “to enable them to gain access to essential medicines and food.”

A US official said the proposal was made more “balanced” by adding “rights and obligations”, that the use of flexibilities was made more “demand-driven” rather than possibly mandating that countries use the flexibilities, and was made to more closely reflect the existing WTO-WIPO agreement on technical assistance.

The linkage of access to medicines and the TRIPS flexibilities was also compromised in a recent malaria resolution adopted at the World Health Assembly after the United States took issue with it and a compromise was reached (IPW, WHO, 21 May 2007). The United States also took issue with the TRIPS flexibility language in a Group of Eight declaration recently (IPW, Public Health, 7 June 2007).

At least one of the US negotiators from the G8 meetings who worked to weaken the TRIPS flexibilities language there is also participating in this week’s negotiations.

Members Urged to Speed Up

Meeting Chair Ambassador Trevor Clarke of Barbados told Intellectual Property Watch that cluster B was recognised by everyone as “the most difficult cluster.” Clarke said that the group had made “quality” progress on cluster B, but not as much “quantity” progress and had not been fast enough.

The primary negotiations are being conducted in a closed room by a small number of representatives from each WIPO regional group, totally about 30 officials at the table. Clarke was, however, not planning to change the strategy of setting up more groups, but said things should be easier once they had moved “past B.”

All of the clusters are supposed to be agreed by the end of Friday 15 June, and a report is to be sent to the WIPO General Assembly in September/October.

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