By Ahmed Abdel Latif

This week’s TRIPS Council meetings provide a timely opportunity to reflect on the linkages between the work of the Council and the ongoing WIPO Development Agenda process, which entered an implementation phase with the first meeting, last week, of WIPO’s new Committee on Development and Intellectual Property (CDIP). Just as the Doha Declaration on TRIPS and Public Health (2001) had a significance that went beyond the WTO context, a number of the WIPO Development Agenda recommendations – in areas such as technical assistance, norm setting, technology transfer and enforcement – have implications beyond WIPO and a particular bearing for the work of the TRIPS Council.

The WIPO and WTO are linked historically and institutionally in the area of intellectual property. It is important to recall, in this regard, that the WIPO Development Agenda was aimed at integrating the development dimension in WIPO’s activities in view of the centrality of this dimension in the UN system at large and the particular importance it had acquired in other relevant fora such as the WTO under the Doha Development Agenda. It also sought to address concerns regarding the extent to which WIPO’s technical assistance integrated the flexibilities in the TRIPS agreement as reaffirmed by the Doha Declaration on TRIPS and Public Health. The balanced wording of the Doha Declaration reflected the approach to IP protection and public interest objectives, which the proponents of the WIPO Development Agenda, were seeking to inject into WIPO and mainstream in its activities.

After two years of intense deliberations, the WIPO General Assembly adopted last year by consensus 45 recommendations to advance the Development Agenda deliberations. Nineteen of these recommendations were identified for immediate implementation. Importantly, three of the WIPO Development Agenda recommendations make direct references to the WTO and the TRIPS agreement.

Recommendation 14 stipulates that “within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs [least developed countries], on the implementation and operation of the rights and obligations and the understanding and use of flexibilities contained in the TRIPS agreement.” Recommendation 40 requests WIPO “to intensify its cooperation on IP related issues with UN agencies, according to member States orientation, … and other relevant international organisations, especially WTO in order to strengthen the coordination for maximum efficiency in undertaking development programs.” Recommendation 45 on enforcement points to approaching “intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns” making reference to Article 7 of the TRIPS agreement.

The WIPO Development Agenda recommendations are particularly relevant to ongoing deliberations at the TRIPS Council on IP-related technical assistance and technology transfer. With a few exceptions, developing countries have not systematically addressed the extent to which technical assistance activities reported by developed countries under Article 67 are truly “development oriented” and contribute to a balanced implementation of the TRIPS agreement in light of its objectives and principles in articles 7 and 8. Indeed, Article 67 provided that “such cooperation shall include assistance in the preparation of laws and regulations on the protection and enforcement of intellectual property rights as well as on the prevention of their abuse…”

Thus technical cooperation and capacity building activities should not be limited to the implementation of TRIPS obligations, but should equally focus on preventing abuses of IPRs and on the rights provided to countries in the TRIPS agreement, including how to make full use of the flexibilities contained in the agreement as reaffirmed by the Doha Declaration on the TRIPS Agreement and Public Health.

Similarly, there has as yet been too little scrutiny of developed country efforts to fulfil their obligations under Article 66.2 of the TRIPS agreement to provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least-developed country members in order to enable them to create a sound and viable technological base. In reality, many of the activities that developed countries present in their reports on their actions to fulfil Article 66.2 are training and capacity building activities, which do not necessarily lead to transfer of technology or fulfil Article 66.2 requirements in this respect.

Alongside their ongoing efforts to actively engage in the implementation process related to the WIPO Development Agenda, countries should also consider bringing the spirit of many of its recommendations to the TRIPS Council to inform and guide their deliberations. In so doing, they would signal the need for a departure from the “business as usual approach” in addressing a number of issues on the Council’s agenda. Efforts by developing countries to achieve a more balanced and development friendly global IP architecture will be more effective if they ensure that their achievements in the context of WIPO and the TRIPS Council are mutually reinforcing.

 Ahmed Abdel Latif is the Programme Manager for IP and Sustainable Development at the International Centre for Trade and Sustainable Development (ICTSD). The views expressed in this article are the personal views of the author and do not necessarily reflect the views of ICTSD.