Reforms Needed To Open WIPO’s Door Wider To Development, Diplomat SaysPublished on 11 May 2011 @ 5:07 pm
By Catherine Saez, Intellectual Property Watch
The adoption of a Development Agenda by the General Assembly of the World Intellectual Property Organization three years ago was seen by most as a success for developing countries and a sign that the organisation was assuming its role as a United Nations agency to a fuller extent. However, according to a lead official on Development Agenda implementation, there is still a long way to go and changes are needed.
The official spoke at a 4 May side event to the 2-6 May WIPO Committee on Development and Intellectual Property (CDIP). The International Centre for Trade and Sustainable Development organised a dialogue on “Future Directions for IP Reform” and a representative of the Indian mission presented an assessment of the achievements and shortcomings of the WIPO Development Agenda, and the need for WIPO reforms. India is currently in the lead role of the Development Agenda Group.
Following a presentation of a book on proposed amendments to the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Nandini Kotthapally from the permanent mission of India said that although a revision of TRIPS is an excellent idea, it would be a very difficult exercise (IPW, WIPO, 6 May 2011). However, the Development Agenda is a good example of soft law that has brought many positive changes, she said.
The Development Agenda is not a treaty, but in the short period of three years since its adoption, significant changes have occurred in WIPO, Nandini said.
Among the positive achievements of the Development Agenda, according to Kotthapally, is the fact that it transformed the organisation “from an exclusive rich man’s club into becoming a United Nations agency where developing countries are finding their voice.”
The Development Agenda also initiated a conceptual shift, where the previous notion that “IP is good and more IP is even better” has been countered by the idea that IP is only good if it contributes to the overall national development. The “one-size-fits-all” approach has changed at least in conceptual terms to a tailor-made approach to specific needs of countries, she said, and there also was a shift towards the larger public objective of IP through the promotion of innovation instead of a limited focus on IP protection, Nandini said.
At the institutional level, the programme and budget is cross-referenced with the Development Agenda, development is integrated into WIPO’s strategic plan, and to some extent in the director general’s Medium-Term Strategic Plan for WIPO. Several WIPO committees are also beginning to reflect development considerations, such as the CDIP, the Standing Committee on the Law of Patents, the CDIP, and the Audit Committee, she said.
All these are steps in the right direction, she said, but a lot more can be done, and there is a long road ahead.
Development Still Seen as Concession
When progress is being made, in real terms, how much are things actually changing? Kotthapally asked. She gave the example of the Committee on WIPO Standards, which met for the first time from 25-29 October and was suspended after delegates were unable to agree on two agenda items related to the Development Agenda (IPW, WIPO, 1 November 2011).
The WIPO Committee on Standards was created by the General Assembly with a specific mandate to incorporate a developmental dimension, she said. However, after the committee was suspended, it continued to do its work through an electronic forum. Only the technical part of the work of the committee has continued, despite the General Assembly’s directive to integrate development considerations into its work.
The mindset that WIPO is a technical IP service provider has not really gone away, she said, and development is seen as a concession that can be made. For example, technical assistance is a “black box” which mostly continues to focus on IP protection and enforcement, she said. There is a great reluctance at WIPO to discuss larger development issues, she added.
WIPO Reforms, New Executive Body Needed for Oversight
Some reforms would be necessary in WIPO to truly address the development dimension of the organisation, Nandini said. For example, she called for extending the frequency and the duration of Program and Budget Committee (PBC) sessions.
The PBC is an important WIPO Committee, where in particular the budget of the organisation is approved before the General Assembly. The PBC meets formally for three days once a year, while other WIPO committees typically meet twice a year over a week each for each session, Nandini told Intellectual Property Watch.
The budget is prepared by the WIPO secretariat, without consultation, she said. The PBC is a “big battleground” with several very important issues on a very tight time constraint, and high pressure to approve the budget before the General Assembly, she said. There is a need for more sessions of the PBC, at least two five-day sessions, as is the case with other WIPO committees, “to give more space to discussions and give the feeling that member states are part of the process, not merely rubberstamping it.”
WIPO’s “governance structure remains frozen in the 1967 pre-UN format,” Nandini said at the side event. “The organisation is asked to deliver new results with the same old tools.”
WIPO takes its roots in the United International Bureaux for the Protection of Intellectual Property (know under its French acronym BIRPI), which was a seven-person staffed office in Bern, according to the WIPO website. In 1960, BIRPI moved from Bern to Geneva, and the organisation became WIPO in 1967, to become a specialised agency of the United Nations system in 1974.
An example of the pre-UN format is the WIPO Coordination Committee, which was created in the 1967 Convention establishing WIPO, she said. The convention said the committee should give advice to the General Assembly and the director general on all administrative and financial matters, prepare the draft agenda of the General Assembly, and prepare a draft programme and budget. The committee also was in charge of appointing the director general, according to the convention. Many of the Coordination Committee’s mandated functions are now redundant, she said.
The budget and advisory functions are now performed by the PBC, Nandini said, while the Coordination Committee just nominates the director general and the senior management team, so there is a question about the role that this body is playing now, she said.
The Coordination Committee “needs to be redefined as a real executive body to do the oversight role that member states are unable to do right now,” she told Intellectual Property Watch. A recommendation to abolish the Coordination Committee was already put forward in the WIPO General Assembly Working Group on Constitutional Reform submitted in 2003, she said at the event.
With 83 countries and a complicated membership structure, the Coordination Committee is too big and too complicated, according to Nandini. The executive body should include less member states but it should be large enough to be representative, she said. It would improve WIPO governance and the predictability and transparency in processes, and alleviate mistrust, she said.
Genuine Regional Groups, No Revolving Doors
A reorganisation of WIPO regional groups is needed, she said. At present there are seven regional groups in WIPO: the Asian Group, the African Group, GRULAC (the Group of Latin American and Caribbean Countries), Group B developed countries (which is inter-regional), the Central Europe and Baltic States Group (CEBS), the Central Asian, Central and East European Group (CACEEC), and China, she told Intellectual Property Watch.
However, those groups are not on an equal footing, she said. Regional groups “should be regional in nature” and be modelled after the five traditional UN regional groups: the African group, the Asian group, the Eastern European group, the Latin American and Caribbean group and the western European and other group.
In WIPO, there is an imbalance between the groups, with only one cross-regional interest group, which is Group B. This group is a coalition of different developed countries, based in different regions of the world, such as Australia, Canada, the European Union countries, Japan, New Zealand, and the United States.
With truly regional groups, there then could be any number of negotiating groups formed in parallel with the regional groups, she said.
She also said there was a need of greater balance in WIPO staffing, which does not represent the member states adequately. According to a WIPO document [pdf] on geographical representation and gender balance, there seems to be an greater number of staff coming from developed countries.
The revolving door system “where diplomats join the secretariat and IP officials in capitals join the secretariat,” should also be abandoned, as this contributes to the politicisation of WIPO, she said.
Finally, she called for a rotation of chairs to improve the predictability and the transparency, and said an automatic rotation among groups is desirable.
Nandini and other diplomats also told Intellectual Property Watch that WIPO should refrain from organising meetings back to back as it is difficult for delegates to prepare meetings under those conditions, in particular for small missions. This is occurring right now, as – after weeks of almost no WIPO meetings, three important committee meetings are being held in three consecutive weeks, the final one overlapping with the World Health Assembly just up the street.
Catherine Saez may be reached at email@example.com.