How To Reboot WIPO

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By Nick Ashton-Hart

By this point, I’m sure the entire intellectual property community knows that WIPO has problems, from an investigation of sanctions-busting in its technical assistance programmes going back years to allegations of vote-buying through abuse of the hiring process. It harkens back to the dying days of the term of the last Director-General, Kamil Idris, who left office early under a cloud.

Unfortunately these high-profile incidents are symptoms of bigger problems: WIPO’s accountability, transparency, and governance are not fit for purpose in the 21st century. It is worth stressing that the incumbent Director-General has made genuine progress in introducing modern internal management systems and the webcasting and scribing of some meetings are welcome improvements. The major systemic issues in these key areas remain to be tackled.

The problems are well-known to member-states and NGOs actively following WIPO’s work, but have not been priorities for the member-states. This has allowed underlying issues to fester and now undermine the credibility of the agency and frustrate the member-states in achieving their public policy objectives, irrespective of what they are. Action is now necessary and in everyone’s interests.

While more than 90% of WIPO’s budget comes mainly from the private sector in developed countries – though this is changing – it has been developing countries that are leading efforts for reform, most significantly in the recent joint proposal of the Development Agenda and African groups to the Committee on Development and Intellectual Property this summer.1 While the proposals are focused on development issues, in many cases amendments to make their scope more general would be a straightforward proposition and bring major benefits. Developed countries should reach out ‘across the aisle’ to agree on a process of reform and a near-term package of initial measures that would build confidence that we are on the road to a better WIPO, where deals can be struck over the course of time on further measures. A spirit of compromise is needed as it always is, but we have detected a lot of shared understanding of the problems and a willingness to work together in talking to countries of all persuasions on substance.

What could an initial package of reforms contain? From an industry perspective, I’d suggest the following:

1. Publish a lot more of what is kept secret. Right now, there are key processes, meetings, documents, and information about consultants that is kept confidential. The default in entire areas is secrecy. This should be reversed:
a. All meetings organised by, or with, WIPO should be published with complete details as soon as they become available. There is a continuing stream of examples where the details of major meetings are not published in full – or at all. I’ve been told that WIPO doesn’t even have a policy of what meetings to publish – this is easy to fix: publish it all – including presentations made and where possible recordings of the proceedings.2
b. Details about WIPO’s technical assistance should be public. Right now, the entire process of legislative technical assistance is kept confidential: nobody knows how many countries ask for advice, what advice is given, and who formulates it. Given the enormous influence that WIPO’s technical assistance has on worldwide IP laws, this should be reversed: If countries want their names to be confidential, that’s not ideal but OK – however the substance of the advice, who formulated it, and the rationale and CV of those that developed it must be public, along with all model laws and the like.
c. All reports in the nature of checks and balances should be public. Presently, audits are not released electronically, and only member-states may see them by making an appointment and going to WIPO’s offices to review them. This is a relic of an earlier time and unacceptably secretive in the 21st century. All of this kind of information – including the work of the Ombudsman, auditors, and independent audit oversight processes3 should be publicly available, the only redactions being those absolutely necessary to protect individual privacy as would be recognised as best practice in the public and private sector.

2. Stop being an activist Secretariat and become demand-driven. WIPO’s evergreen funding from industrial property negotiations gives it more independence from the member-states than any other UN body. This has become a liability – for all stakeholders as well as the organisation itself. The organization’s Secretariat is more activist than servant, with activities that respond more to its perceived interests than the requirements of the member-states, let alone anyone else. I would note that ‘demand driven’ does not mean everyone can have everything they want – it does mean what the Secretariat does should be driven by a process driven by stakeholders, rather than the Secretariat.

Here are just a few examples of how badly off-track things are:
a. Just this past month, a major new work programme, the National IP Strategies Framework,” was launched by the Secretariat without any public notification or consultation. A broad cross-section of industry objected to it as unbalanced after WIPO decided in advance who would populate the expert groups. WIPO, under pressure, finally published information about the project. The idea behind this project is an excellent one; it shouldn’t be undermined out-of-the-gate like this. WIPO should start over – and involve everyone from the outset.
b. An attempt by the Secretariat to garner for itself a role in deciding whether the content of social media, search engines, and online marketplaces globally breach trademark rules was prevented by a cross section of member states, industry, and NGOs in 2011.4
c. The “African IP Summit” in 2011, co-organised by WIPO and the US Department of Commerce, was cancelled at short notice after more than 100 NGOs worldwide objected to what they saw as a completely unbalanced meeting agenda.5
d. Despite no visible requests from member-states to do so, WIPO decided that it should start holding meetings about enforcement of copyright by Internet intermediaries; two of the three meetings it hosted were one-sided opportunities for the handful of countries with “three strikes” laws to promote them. When we asked what they were doing, we were told that the agency feels that it needs to discuss the Internet to appear “relevant.”

The result of all of this isn’t more relevance, but less credibility. Industry stakeholders – very broadly – are increasingly fed up, as are civil society representatives, and we hear that member-states are increasingly frustrated too.

3. Open closed meetings which are key to WIPO’s governance: The meetings of both the Programme and Budget Committee and the Coordination Committee should be open to observers by default, and only enter closed session on specific need and on rare occasions. This is doubly true given that more than 90% of WIPO’s funding comes from non-governmental sources.

4. Overhaul the Budget and Financial Reporting Processes to make them simpler, easier to follow, and more transparent: These are very cumbersome and the associated documents hard to work with and internally inconsistent, including material calculation errors. A report produced last year by an experienced auditor with a major firm on the current budget has many ideas for improvement; they should be implemented6. Specialist financial knowledge should not be required to understand the budget or financial processes of WIPO or any other public institution.

5. Completely overhaul the way in which development spending and reporting is handled, using best practices instead of reinventing the wheel. Whether you believe that WIPO should devote more resources to development or less, all stakeholders should want to trust the statistics on how much money is being spent and how much value it is delivering.7
a. WIPO should adopt a standard definition of what constitutes development spending – not create a new definition for itself. The present definition means that every business-class airfare by a member of staff to a developing country destination qualifies as ‘development related’ spending. Member-states are working on drafting a new definition, but this is reinventing the wheel: WIPO should simply adopt the ‘industry standard’ definitions used by the UN’s development agency (the UN Development Programme (UNDP)), which the rest of the UN uses and much of the NGO sector besides. I’ve spoken to officials at UNDP and they’d be happy to help in this area: member-states, and WIPO, should take up that offer.
b. The evaluation of development spending should be based on standards and best practices. Presently, WIPO is also making this up from scratch, and doing a poor job of it8 though here again development agencies in both member-states and the UN family have best practices to leverage developed over vastly greater experience than WIPO will ever have in this field. There is no reason for WIPO to reinvent this wheel.

We’ve heard it said that issues of definitions and standards like this is politically fraught (it is) and that developing countries are worried they will get less money if there is more transparency. I understand these concerns but again, this entire battle has already been fought and resolved in the UN’s development agencies. Why re-fight it at WIPO? Leverage someone else’s painful negotiations and take the benefits – and save the political capital for other battles, like how much spending there should be.

6. WIPO’s relationship with non-governmental stakeholders needs a significant upgrade. While most of the UN system – and most governments – have upgraded their collaboration with civil society and industry, WIPO’s engagement has fundamentally not changed in many years. Most NGOs (including CCIA) accept that states get to vote and propose, and we get to observe, advise, and comment. That fundamental dynamic can be maintained but there’s plenty of room for NGOs to be more engaged in WIPO’s work than just sitting in the back of the room and making short interventions at meetings, and in truth WIPO and its member-states would benefit greatly from it. WIPO will never have the capacity to hire the world’s foremost experts in every area that intellectual property impacts, nor will member-states – but they are all there to draw on the non-governmental community. WIPO should apply as much innovation to its relationships with its stakeholders as the IP system is designed to foster. Member States should ask the Secretariat to engage non-governmental stakeholders on a global, inclusive basis to design new results-driven mechanisms for engaging stakeholders, and for eliciting from them expertise that can improve WIPO’s processes and decision-making. It will get plenty of practical, useful ideas – and I’ll guarantee that much of what we ask for will be of benefit to member-states too.

WIPO’s member-states should turn the current situation into a positive by adopting an initial package of reforms, and a process for further action – at this year’s Assemblies. If they fail to seize that opportunity, then I believe that the credibility of the agency will rapidly plummet and private sector stakeholders will increasingly question what the proportion of their fees (more than 30% in the case of patent registrations) is funding. Resistance to continuing fees at their present level will grow – endangering the development assistance that is so important to developing countries.

The Director-General, too, should see this as an opportunity to create a legacy beyond the current difficulties; there are many measures he can implement without asking for permission from the member-states. There is a guarantee of a positive legacy in being the leader who brought WIPO’s transparency, accountability, and governance institutions into the 21st century. There are few other areas where such a guarantee exists. He has taken some steps – if he seizes this opportunity he will cement that positive legacy. If he fails to grasp the opportunity, then a rather different legacy awaits.

Nick Ashton-Hart is the Geneva Representative of the Computer & Communications Industry Association. His full bio may be found here.

  1. See document CDIP/9/16, especially the Annex in sections E and F. [^]
  2. A few examples of recent press stories about undisclosed meetings: IP-Watch, “WIPO Defends Involvement In IP Enforcement Meeting In The Philippines”, 24/10/2011; IP Watch, “US, WIPO Training Programme On IP Rights In Africa Comes Under Fire”, 12/02/2012 [^]
  3. See The Independent Audit Oversight Charter can be found at http://www.wipo.int/edocs/mdocs/govbody/en/wo_ga_41/wo_ga_41_10.pdf. [^]
  4. The Secretariat’s proposal may be found in in paragraphs 69 and 70 of the document available at http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=156897. The representative views from the Internet sector on the matter can be found here: http://www.ccianet.org/index.asp?sid=5&artid=213&evtflg=False. [^]
  5. A small sample of the negative views this generated, as well as the letter text, can be found at http://www.twnside.org.sg/title2/intellectual_property/info.service/2012/ipr.info.120203.htm. [^]
  6. The report may be found on our website: http://dld.bz/cciawipobudget.qr [^]
  7. On the contrary: According to WIPO’s budget for 2012/13, 21.7% (CHF 140.5 million) are allocated for “development expenditure”. However, according to the 2010 OECD report on multilateral aid, WIPO only spent 3% of its budget on official development aid (see p. 143 and p. 2 of annex 2). WIPO’s program and budget for 2012/13 contains no information on the methodology, definitions or benchmarks used to assess “development expenditure”. [^]
  8. You don’t have to take our word for it, either: WIPO’s member-states insisted on an independent evaluation of its development activities. The report that resulted, delivered in August 2011, found “… significant shortcomings in WIPO’s internal processes for defining, measuring and monitoring the distribution of its budget and expenditure for development cooperation activities.” [^]

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Comments

  1. says

    7. Spread the word about the evil institute called WIPO and make their crimes known to the public so that they can no longer function under secrecy.

  2. Riaz Tayob says

    Excellent article, hope it generates more comments. Pity this is the situation when the poor countries actually gave Wipo a mandate after decades to promote development, to really bring it into the Un family… Alas, the agency has neither had the capability nor the willingness to address development (they still parade the investment protection against patent flexibilities argument when in fact exclusivity – Wipo pundits don’t like the term monopoly – is granted for exchange of information… With patent quality issues becoming more litigious the world over one can see wipo suffers for relevance and for being a non-partisan safeguarder of the system. With such fundamental problems of perspective it is difficult to see how they can manage when the taubman’s – only 1 really comes to mind as worth mentioning in terms of precision and systemic concerns – of the world (veritable insiders) seem to find more space at the WTO for action than the wipo… The investment perspective puts paid to many of the issues in the development agenda… And ineptocracy cannot manage, even after technical assistance from a un agency, to garner poor countries that use a fair whack of flexibilities (because it would lower poor country investment overhead) the situation is even more dire than u say. What I don’t get is why with being able to self fund and budget restraint imposed by the rich countries, these self same countries support bilateral arrangements funded with wipo… One would expect a bureaucracy to protect its turf, and safeguard bureaucratic independence as much as possible, so there seems to be a culture problem at a fundamental level… Most other un agency heads are flustered because of lack of control over funds, sometimes more than ordinary budget, from external sources… As they say, something is rotten in the state of Denmark… These guys could not even protect the US from it’s own enthusiasm for an African IP conference… Biased no less… Where does it stop? It is as if the particular concerns of specific players is good for the system as a whole… These guys (and politically it also is rather male at the top it seems, but happy to be corrected) need to take their own mandates seriously… Self interest does not automatically result in the common good, even greenspan shrugged this atlas away, but perhaps these winds blow slowly to Geneva…

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