WIPO Scrutinised For Development Dimension, Involvement In UN Panel On Medicines

New text-based government efforts to recommend to the World Intellectual Property Organization General Assembly which committees should report on their development activities have been unsuccessful so far this week. Separately, WIPO was asked by members to provide information on its involvement with the United Nations Secretary General’s High-Level Panel on Access to Medicines, and responded that it is in a delicate situation.

The 17th session of the Committee on Development and Intellectual Property (CDIP) is taking place from 11-15 April.

WIPO delegates once again tried to find agreement on two prickly issues that have been discussed at the CDIP for several years. Both issues relate to the 2007 WIPO Development Agenda.

One of these issues concerns the coordination mechanism of the Development Agenda, through which WIPO committees should report to the annual General Assembly on their development-related activities. All but two committees comply with the coordination mechanism. The Committee on WIPO Standards (CWS) and the Program and Budget Committee (PBC) do not.

The second issue regards the addition of a standing agenda item on the CDIP agenda on IP and development, which has been requested by developing countries, and opposed by developed countries.

Developing countries have asked since the adoption in 2010 of the coordination mechanism that the CWS and the PBC follow the instructions of the coordination mechanism, as in their view all committees should conform to the mechanism. The 2010 decision establishing the coordination mechanism states: “All WIPO Committees stand on an equal footing and report to the Assemblies.”

However, developed countries have remarked that the decision talks about “relevant WIPO bodies” having to report to the General Assembly on their development-related activities, thus exonerating the CWS and the PBC, and any other committee that would deem itself to be irrelevant to that.

The WIPO General Assembly in October 2015 instructed the CDIP to continue the discussion on those matters and report back in October 2016.

Based upon a Mexican proposal tabled during the 15th session of the CDIP (April 2015) on a possible systematisation of the compliance of committees with the coordination mechanism, which Mexico later dropped, the CDIP chair proposed a draft recommendation to the General Assembly, according to WIPO secretariat (IPW, WIPO, 12 November 2015).

This draft recommendation was discussed in an informal setting and some delegations added proposed language [pdf]. This included the African Group, Group B developed countries, and the United States (which is part of Group B).

On 12 April, new CDIP Chair Amb. Luis Enrique Chávez Basagoitia of Peru attempted to reduce the options in the draft recommendations and an updated document [pdf] was released in the afternoon.

No agreement could be found on common language from this new document and the chair decided to push the discussion until later in the week.

Questions on WIPO Engagement with UN Panel On Medicines

As is customary, WIPO Director General Francis Gurry presented the director’s yearly report [pdf] on the implementation of the Development Agenda, which describes how WIPO is streamlining the Development Agenda in its activities. The report also describes development in the implementation of Development Agenda projects.

The document reports on WIPO’s cooperation with a number of other United Nations organisations, and UN processes such as Open Working Group on Sustainable Development Goals (SDGs), the Millennium Development Goals (MDGs) Gap Task Force, and the UN Framework Convention on Climate Change (UNFCCC). Some member states, however, asked why the document did not mention the UN High-Level Panel on Access to Medicines.

Nigeria on behalf of the African Group requested more information on WIPO’s involvement in the UN High-Level Panel and in particular asked that the substantive input that WIPO made to the panel be made available.

South Africa underlined the importance of getting access to WIPO’s official position on the mandate of the High-Level Panel, and its involvement in the panel itself. It is imperative, the delegate said, that WIPO informs member states on its participation and contribution to the panel. The delegate said the UN World Health Organization had already uploaded its contribution onto its website, and asked when WIPO’s contribution would be available.

Brazil said the statement made by a WIPO representative during a presentation briefing in February caused great concern because it apparently questioned the High Panel’s mandate (IPW, Public Health, 1 February 2016).

“The complex interplay between the protection of intellectual property and the imperative of insuring access to life-saving medicines is not a new issue,” the delegate said. “The anti-competitive use of intellectual property rights in a way that threatens access to medicines and reduces the general welfare of society is well documented in the European Commission’s Pharmaceutical Sector Inquiry,” he added as an example of previous work on the subject.

“The High-Level Panel was established precisely to discuss ways of providing incentives to both innovation and access,” he said, adding that Brazil was looking forward to read WIPO’s input to the panel.

WIPO in Delicate Situation, Gurry Says

Gurry said WIPO participates in two kinds of external processes, both intergovernmental processes, such as the UN Sustainable Development Goals, and processes initiated by other UN organisations, such as the High-Level Panel. The panel was established in December by UN Secretary General Ban Ki-moon.

The High-Level Panel is a committee of experts, and as such not yet an intergovernmental process, he said.

Cases such as the High-Level Panel “are delicate situations for the secretariat,” he said, “because we are there only as the secretariat of course, and we are there only to provide information,” he said, acknowledging that there are divergent views among member states on some issues.

“There is no policy instrument that has been adopted by member states on some issues,” he said, “so we regard our role as an informal role … with respect to any questions or issues in relation to intellectual property.”

Gurry said WIPO would be “very happy to upload the contribution that was made [to the High-Level Panel] and we can do so almost immediately as soon as the requisite logistical arrangements can be made.” According to a WIPO official, the contribution is expected to be uploaded on the High-Level Panel website (contributions from multilateral agencies).

On the mandate of the panel, which is “to review and assess proposals and recommend solutions for remedying the policy incoherence between the justifiable rights of inventors, international human rights law, trade rules and public health in the context of health technologies (proposed scope),” Gurry said, “I would not refer to it as policy incoherence but would refer to it as tension.”

“There is always going to be tension between, on the one hand, a mechanism such as intellectual property which creates the possibility of market exchange as making access actually a saleable commodity, that is what in economic terms intellectual property does, it creates rights that restrict access, that gives control over access to the originator or the innovator as the case may be,” he said, “and on the other hand of course, the reason why we want innovation, which is to improve the quality of life and to enable the widespread social enjoyment of the new innovation.”

“That is a tension that has always existed and in my personal view, and you may have a different view, will always exist, and it is a question of balance,” he said.

“We are open to your directions. It is a highly sensitive area,” he said. “There are divergent views and we will treat those views from the member states with utmost respect and try to maintain the utmost neutrality in providing an informational role in relation to these processes.”

WIPO Deputy Director General Mario Matus remarked that the first face-to-face meeting among members of the High-Level Panel took place in December 2015 and the first public hearing in March 2016, which is why the DG’s report did not include information on WIPO’s involvement with the High-Level Panel.

The director general’s report was generally praised by developed countries and developing countries, however some such as the African Group and Brazil underlined that the mainstreaming of the WIPO Development Agenda cannot be limited to a collection of development projects.

Meanwhile on projects according to the report, “By the end of 2015, Member States had approved 31 projects, implementing 33 recommendations. The estimated financial resources approved to date for the implementation of these projects amounts to 28,124,792 Swiss francs.”