By Catherine Saez
Intellectual property-related issues appear to be a clear policy focus of the United Nations Conference On Trade and Development (UNCTAD) as an IP mandate was reconfirmed by the 12th quadrennial UNCTAD conference in April and the organisation has been named by two other prominent UN agencies as a key stakeholder in this area bringing a unique view.

“We bring a development perspective to the issue of IP,” said Kiyoshi Adachi, UNCTAD legal adviser. The increased involvement is partly driven by the interest of member countries, and the IP team intends to fulfil the mandate, relying on the staff’s legal and development expertise, he said.

The IP mandate was spelled out in paragraph 153 of the Accra Accord, the outcome text of the UNCTAD conference held every four years, most recently in April in Ghana. The paragraph states: “Taking into account the WIPO Development Agenda and without prejudice to the work undertaken in other forums, UNCTAD, within its mandate, should continue to undertake research and analysis on trade and development aspects of intellectual property, including in the areas of investment and technology.”

The organisation also was named in the World Intellectual Property Organization (WIPO) Development Agenda adopted by the 2007 WIPO General Assembly. It was the first of several agencies listed for increased cooperation in paragraph 40 of the agreed recommendations, which are in the process of being implemented through the new Committee on Development and IP.

UNCTAD further is part of the plan of action adopted by the last World Health Assembly. The fact that they are mentioned in WHA Resolution 61.21, to participate in building and strengthening the capacity to manage and apply intellectual property in accordance with developing countries’ needs, also seems to confirm UNCTAD’s advisory role on intellectual property related matters.

UNCTAD, established in 1964, has three key functions: To provide a forum for intergovernmental deliberations; undertake research, policy analysis and data collection for the debates of governments; and provide technical assistance to developing countries, with the aim of promoting their integration into the world economy. The organisation is confirming its continued interest and role in intellectual property policy.

According to officials, the growing interest in UNCTAD’s capabilities appears to be strengthened by the fact that they appear in IP-related workshops and events, offering their expertise and knowledge on development and IP issues.

ICTSD Joint Project

UNCTAD also has an ongoing project with the International Centre for Trade and Sustainable Development (ICTSD), the Capacity Building Project on Intellectual Property Rights and Sustainable Development, which dates back to 2001.

Supported by external funding, the joint project operates “in many ways like a joint venture” between a nongovernmental organisation and an intergovernmental organisation, Adachi said. The project produced a series of documents and policy discussion papers, a resource book on the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and development, and case studies. The pair also organise joint events, such as a June panel discussion about a more effective implementation of TRIPS Article 66.2 on encouraging technology transfer (IPW, Technology Transfer/Technical Cooperation, 8 July 2008).

Under the joint project with ICTSD, UNCTAD also produces reports entitled the Development Dimension of IP. They are advisory reports prepared for governments who request them. UNCTAD looks into their IP regime, clarifies their objectives, and proposes changes to the IP regime to reach the government’s development goals.

UNCTAD also turns to other stakeholders for input and has organised debates jointly with the market-oriented pan-European think tank Stockholm Network. Two debates were organised in 2007, one of which was about pharmaceutical and IP rights. The panels were fairly balanced, congregating a wide range of views, said Adachi.

Advising Governments on Adaptation of their IP Regimes

UNCTAD also provides an advisory role for developing country governments, notably concerning patents and pharmaceuticals. “There are a lot of governments interested in this area” Adachi told Intellectual Property Watch. A special emphasis is given to the use of TRIPS flexibilities, instances where governments have some leeway in the application of TRIPS standards.

Several workshops on the subject have been organised in Africa and for Southeast Asia, later this year, aimed at local production of pharmaceuticals. “It is a slightly different angle than just access to medicine,” said Christoph Spennemann, UNCTAD legal expert.

“Africa is getting more and more into it” and a lot of amendments are being made to legislation containing overly strong IP standards (IPW, Technical Cooperation/Technology Transfer, 11 December 2007) in order to incorporate flexibilities, he said.

Governments are establishing plants to manufacture medicines based on a waiver for least developed countries (LDCs) at the WTO Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) decision of June 2002 exempting LDCs from providing patent protection for pharmaceuticals until 2016, or using flexibilities for generics if they are developing countries, he said.

“If TRIPS flexibilities were strategically implemented, generic producers would have incentives to go to LDCs,” Spennemann said. For example, Cipla, a prominent Indian generic pharmaceutical company, is interested by a joint venture for generic HIV medicine in Uganda, he said, adding, however, “The decision whether a company moves in to a country goes beyond IP.”

“We get asked by governments to look at their IP laws to make sure that they are supportive of an environment that can allow the development of generic production,” Spennemann said.

UNCTAD responds to a variety of government requests for technical assistance, in particular the organisation assist developing countries to establish domestic intellectual property regimes that facilitate increased access to affordable medicines and supports the creation of local or regional pharmaceutical production and supply capacities.

While the Austria-based United Nations Industrial Development Organization makes economic assessments of countries, ensuring manufacturing of a product is economically feasible, UNCTAD focuses on legal issues, the official said. UNIDO’s focus in more in trade capacity building, according to their website.

New Interest in Access to Knowledge

Access to knowledge is another relatively new interest of the organisation. “We’re slowly moving into this area,” Spennemann said.

For example, in Uganda, a publishers association may be considering increasing access to textbooks for students. Although they oppose photocopying book contents, they are ready to try new things, such as making certain texts freely available to universities, renouncing some IP rights. The government might provide an incentive by offering a separate government procurement contract if a publisher agrees to assist the university. UNCTAD is advising the government about access to knowledge issues and their use of TRIPS flexibilities in copyright law. “The starting point is always the development objective,” he said.

The two main interests of the UNCTAD IP team are the focus on pharmaceuticals funded by the UK and German governments, and the project with ICTSD, which covers areas as diverse as copyright issues, medicines, technology transfer and plant varieties. They also examine the implication of regional and bilateral trade and investment agreements for developing countries’ IP policies. “Our mandate is very broad” said Adachi.

Catherine Saez may be reached at csaez@ip-watch.ch.