Proponents: Slow Better Than Poor For WIPO Development Agenda

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By William New
World Intellectual Property Organization member states felt their way slowly this month in the first committee meeting on how to implement 45 agreed recommendations for transformation of the United Nations organisation toward a stronger development orientation. But the slow start may have been good for development, some supporters said.

The first meeting of the new Committee on Development and Intellectual Property was held from 3-7 March. It was agreed at the conclusion that the chair would hold informal consultations before the next scheduled meeting of the committee in July.

Participating officials asked about accomplishments during the meeting were hard-pressed for specifics as much of the week’s work was on procedure. But members from various levels of development appeared unsurprised that more substantive work was not done.

One official from an advanced developing country said it was expected that there would be “confusion” about how to proceed. In general, developing countries take the view that the Development Agenda is a long term process of substantive reform of WIPO.

An official from one of the 15 Friends of Development countries (who cosponsored the original 2004 proposal for a Development Agenda) said members of the group did not appear to be disappointed at the slow start, but now see a need to accelerate work.

There has been some question of whether WIPO’s ongoing budgetary stalemate might have an impact on the Development Agenda, as funding for development-related activities was set to increase in the 2008-2009 biennium. The WIPO membership will reconvene at the highest level, the General Assembly, on 31 March, to resume discussion of the budget. They failed to agree on the budget at their annual meeting in October.

The 45 recommendations agreed last year are in two loose categories of 19 that could be implemented immediately without additional resources and 26 that could require additional time or resources. The recommendations are lumped in five thematic clusters, and the group decided to proceed cluster by cluster, looking first at any from the 26 in each cluster, followed by any from the 19. By the end of the week, they had not finished the first cluster, just those from the 26 and some of those from the 19, for a total of six, participants said. There were no changes or decisions, they said.

The committee was created to develop a work programme for implementation of the recommendations, monitor, assess, discuss and report on the implementation. It also will discuss IP and development generally.

The six recommendations that were covered in the meeting were, according to the non-governmental Third World Network’s SUNS publication, to ensure WIPO: provides technical assistance that is development-oriented, and involves donor funding; displays technical assistance information on its website; has agreements with research institutions and private sector that facilitate developing country access to patent databases; helps match needs with resources; and assists member states to build IP infrastructure that is balanced with the public interest.

According to the final chair’s summary: “The CDIP discussed adopted recommendations 2, 5, 8, 9 and 10 in the list of 26 and agreed that the proposed activities, as suitably modified following discussions, would be sent to the secretariat to assess the human and financial resource requirements, before the July 2008 session. In addition, the CDIP reviewed and commented on activities being implemented under adopted recommendation 1 in the list of 19, suggested changes and considered new activities. It was agreed that the secretariat would make the necessary modification and furnish a progress report on the adopted recommendations in the list of 19 for the July 2008 session of the committee.”

Participants said some developed countries particularly raised questions about the costs of recommendations.

During the meeting discussion arose on the flexibilities for developing countries enshrined in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Questions were raised by some developing countries as to the way the flexibilities were interpreted by a WIPO official, who apparently suggested that implementing stronger protection measures than required under World Trade Organization IP rules is a flexibility (when in fact WTO rules offer flexibilities generally as an alternative in the rules).

SUNS reported that Brazilian delegate Guilherme Patriota said afterward that the WIPO secretariat position on a couple of items including flexibilities “outrageous” and possibly a “complete subversion of the Development Agenda.”

The chair of the CDIP is Ambassador Trevor Clarke of Barbados. Vice chairs are Muratbek Azymbakiev, the deputy permanent representative to the UN from Kyrgyzstan, and Javier Alfonso Moreno Ramos, director of the Department of Legal Coordination and International Relations in Spain’s Patents and Trademarks Office.

Intergovernmental, Non-governmental Views

A number of regular followers of the Development Agenda process were on hand during the meeting and some made statements.

The Office of the UN High Commissioner for Human Rights (OHCHR), which is responsible for implementing the UN human rights programme, said intellectual property protection can promote development through investment in innovation and contribute to human rights. It noted that international instruments, such as the UN Universal Declaration of Human Rights, recognise the right to protect moral and material interests from works, and the need to strike a balance between public and private interests.

But OHCHR also highlighted concerns about the impact of IP protection on the right to health, food, education, benefit from scientific progress, and of indigenous peoples. The office specified its support for one of the 19 recommendations that calls for studies on the economic, social and cultural impact” of IP systems in WIPO member states. It encouraged members to consider the use of human rights impact assessments in formulating a work programme for that recommendation.

The Library Copyright Alliance, a coalition of several library groups, and Electronic Information For Libraries (eIFL), submitted a joint statement calling for a stronger emphasis on strategies for using intellectual property “for the benefit of general education, research, preservation and access to knowledge, and the social good that results from a true balance between intellectual property protections and the public interest.”

The groups encouraged recognition of copyright as subsidiary to social and cultural development. “Whatever considerations are put forth to advance the aims of copyright industries, an equally compelling rationale can be made for the benefits of a dynamic and free exchange of knowledge and information, which ultimately gives back to national economies by transforming the minds of individuals,” they wrote. The groups proposed additions to several recommendations, such as those related to the public domain and pro-competitive IP licensing practices, where they cited the growing “Open Access to Scholarly Communications” movement worldwide.

A wide range of copyright industry groups issued a joint statement as the Coalition for Creativity and Development. The coalition includes more than a dozen associations representing authors and composers, collecting societies, actors, producers, musicians, music publishers, the recording industry, film and television, publishers, interactive software, video and media entertainment.

The coalition highlighted the importance of maintaining incentives for creators, and stressed its support for carefully negotiated international copyright instruments. It specified support for recommendations on WIPO technical assistance to least-developed countries, who it suggested would create economic opportunities through effective management of copyright and related rights. The group backed a recommendation to focus technical assistance on smaller companies, but questioned recommendations to help members address anti-competitive practices and promote a “fair balance” between IP and the public interest. It is important, it said, that “current IP law is not mis-characterised as being the opposite end of the spectrum from public interest.”

The group also questioned a recommendation to take into account different levels of development, as it said that has always been done in WIPO treaty-making. On the public domain, they said neither public domain nor strong rights should be ends in themselves, but rather WIPO should focus on identifying works in the public domain and making them more available. They also said: copyright helps to bridge the “digital divide”; WIPO has long had a link between IP and development; there should be clearer criteria for NGO acceptance in WIPO activities; WIPO’s activities should not be restricted outside Geneva; and enforcement creates opportunities.

The International Chamber of Commerce provided a policy statement that captured a number of similar positions to the industry coalition, such as urging no duplication of efforts by WIPO and the importance of the IP system to development.

The Electronic Frontier Foundation supported the public domain recommendations and urged steps for WIPO to help on this and on improving member states’ understanding of the benefits of open and public access policies. EFF also stressed promotion of access to knowledge, and suggested WIPO convene an Open Forum on IP-related obstacles to technology innovation. It further supported recommendations on studies of the impact of WIPO activities, and supported increased transparency in WIPO’s technical assistance, saying, for example, that WIPO offers a model copyright law that EFF said is flawed and no longer available for review on the WIPO website. It also called for WIPO’s interpretations of flexibilities from IP laws for developing countries be made public.

Knowledge Ecology International backed a recommendation by the Friends of Development for an open forum on access to knowledge, plus discussions in other WIPO committees. KEI suggested, for example, that this week’s meeting of the WIPO Standing Committee on Copyright and Related Rights consider global norms to facilitate access to orphaned copyrighted works, cross-border services for the visually impaired or for distance learning. It also welcomed a recommendation to exchange experiences on open collaborative projects such as the Human Genome Project, and urged the holding of a forum on control of anticompetitive practices, and a survey of national systems for conducting impact and economic assessments of IP rights, possibly through the creation of an economic bureau at WIPO.

Door Closing on Scrutiny of WIPO Proceedings

Much of the meeting was held in informal status, an increasing practice at WIPO which participants said results in no record being produced by the secretariat on that part of the proceedings.

An unusual arrangement was made that kept accredited non-governmental participants from reporting on what was said in the room for most of the meeting, according to committee sources. WIPO has nearly 200 accredited NGOs (a majority are industry-oriented), and they are allowed to sit in the plenary room and even make scheduled interventions during negotiations (unlike the press, who are never allowed to enter the room). A number of NGOs usually report on activities in the room, including through almost real-time blogs.

But frequently, meetings have been moving into informal status, leaving accredited non-governmental participants outside the room. In last week’s meeting, a different kind of deal was struck that could set a precedent for WIPO meetings. When the meeting was heading into informal status on the second day, NGOs brokered a deal whereby they could stay in the room if they agreed to follow a form of Chatham House rules, meaning they might report on what was happening, but without mentioning specific nations or individuals’ names.

William New may be reached at wnew@ip-watch.ch.

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