Non-Profits, Industry Offer Views On WIPO Development Agenda

Non-governmental organisations from across the spectrum were elbow to elbow with members of the World Intellectual Property Organisation (WIPO) this week as they wrestled with a proposal for an agenda to increase attention to the needs of developing countries.

Private and non-profit sector representatives generally lined up on either side of debate between developed and developing countries undertaken in an inter-sessional intergovernmental meeting (IIM) this week. WIPO members decided late Wednesday to hold two more sessions of the IIM, one from 20 to 22 June, and the other in July. The IIM was mandated by the WIPO General Assembly last fall to address a proposal by Argentina and Brazil for a more development-friendly focus throughout WIPO’s activities.

That proposal, co-sponsored by twelve other nations (collectively called the Friends of Development), was the subject of discussion in the three-day IIM ending Wednesday along with proposals from Mexico, the United Kingdom and the United States.

A wide range of civil society groups have joined developing countries in pushing for reform of WIPO’s treatment of development issues. A number of them are among seventeen groups who were given “ad hoc” accreditation status to attend the IIMs. It is unclear whether additional groups would be allowed to attend at this point, officials said.

Industry representatives, meanwhile, generally support the notion in the U.S. proposal that no fundamental transformation of WIPO is necessary. The U.K. proposal referred at length to the need to improve the situation for developing countries, but also makes that recommendation. The proposal is “informed” by the developing country perspective, as one official put it.

One industry representative called the Friends of Development proposal a “distraction,” and industry groups generally appeared interested in preventing the Friends of Development proposal from gaining too much traction within WIPO.

The International Chamber of Commerce echoed the view of rights-holders and the U.S. proposal in arguing that WIPO already has a development agenda, should be focused on protection, and that improvements in the system could address concerns. The ICC also called for development issues to be placed under the existing Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD). That committee will hold its next meeting on Thursday and Friday, but it remains to be seen how it will address development.

“Adequate protection of intellectual property rights is a necessary pre-condition for development as a tool to promote innovation, creativity, cultural diversity and technological development,” said Daphne Yong-d’Herve, a senior policy manager at ICC. “But additional measures – such as tax, investment, trade and competition policy, production incentives and a well-functioning and –funded IP office – are essential to make use of the full potential of such rights.”

“Governments need to establish in their own countries the appropriate infrastructure to process and make use of intellectual property rights,” she added. “Otherwise, nothing practical will result from these discussions.”

A joint position was put forward by the Coalition for Creative Development, a group of 18 intellectual property rights owners and others in the “creative sector” cutting across all types of media, including music, software, television, film, actors, journalists and authors. The group said it seeks to help boost the creative industries in developing countries and urged WIPO to include them in its economic development activities, including through training and technical assistance.

The Business Software Alliance, a member of the coalition, also issued its own statement outlining “principles for software innovation.” The group encouraged governments to ensure that publicly funded research is available to all, to promote neutral standards, and to maintain strong intellectual property protection.

The British Copyright Council also stressed the importance of helping developing countries establish their own creative industries. The council called for more research into the economic contribution of the creative industry in developing countries. It also said that developing countries must comply with international standards of protection and enforcement, and added that new technologies such as digitisation will present new opportunities for developing countries to distribute their creative work.

The International Publishers Association also generally promoted the tenets of the U.S. proposal. And a group of international academics and civil society groups issued a letter urging WIPO not to be “diverted from its mission to promote sound IP laws by a so-called ‘development agenda’.” Signers of the letter include former U.S. Patent and Trademark Office official Bruce Lehman and Jim DeLong of the Center for Science in Public Policy.

Innovation For All?

On the other side of the debate, a number of groups from different regions called for the expansion of the benefits of innovation to developing countries. Some placed emphasis on free and open source software and open standards, a concept mentioned in the Friends of Development proposal.

Groups supporting this included the Free Software Alliance, Free Software Foundation Europe, and the Foundation for a Free Information Infrastructure. Pedro de Paranagua, representing the Centre for Technology and Society at the Getulio Vargas Foundation School of Law in Rio de Janeiro, added a voice to the call for free software, as well as for a treaty ensuring access to knowledge.

A variety of civil society groups agreed with the principle that WIPO’s activities need fundamental reform in order for the organisation to adequately advance a development agenda.

Groups such as the Civil Society Coalition (CSC), the Trans-Atlantic Consumer Dialogue and Consumers International presented an extensive range of proposals and ideas on specific aspects of development, including access to affordable medicines, education, consumer rights, access to knowledge and other issues.

The CSC specified the need for countries to adopt legislation and use limitations and exceptions to the rights of patents, trademarks or other types of intellectual property that are necessary to promote access to medicine. It called for the WIPO Standing Committee on Patents to review the organisation’s policies on implementation of the Doha Declaration on TRIPS and Public Health, as well as the control of anticompetitive practices, before it proceeds with harmonisation of patent laws.

James Love of the Consumer Project on Technology (CP Tech) argued for an access to knowledge treaty which he said could help boost innovation in developing countries. “There’s a lot of smart people in developing countries and they want to participate in the IP system,” he said in a civil society panel alongside the meeting.

Love also said policy-makers should focus on patent quality instead of harmonising patents, as the systems in the United States and the European Union, likely to be the model for harmonisation, are in need of improvement. He also highlighted a bill in the U.S. Congress, H.R. 417, that he said would create a multi-billion dollar medical innovation prize fund intended to “break the link” between paying for research and development by charging high prices on drugs.

Tom Giovanetti, president of the Institute for Policy Innovation, noted at the panel discussion that there were groups in the civil society with different views. He countered Love’s assertion that his view is not anti-intellectual property, referring to the groups on the panel, including CP Tech, Médecins sans Frontières, and the Third World Network, as the “IP sceptical community.”

Giovanetti also said an impression is being created that action is “desperately needed” to change the situation, but that in fact changes being sought already are legal. He argued that the burden of proof lies with those proposing new methods.

The Electronic Frontier Foundation targeted concerns about rightsholders’ use of technological protection measures for copyrighted works. EFF argued that overly broad anticircumvention laws have been ineffective and have harmed consumers, research, freedom of expression, competition and innovation. For developing countries, the dangers are even greater, EFF said, since the countries may not have existing legal institutions and processes to rein in the anticircumvention laws.

Library groups such as the International Federation of Library Associations and Institutions and Electronic Information For Libraries, or eIFL.NET, pointed to problems caused for users by increasingly restrictive copyright protections. The library groups support a new Development Agenda within WIPO as a way to take into account varying development levels when it comes to intellectual property protection.

Ellen ‘t Hoen of Médecins sans Frontières (MSF) urged WIPO to take a role in ensuring that the benefits of innovation are “not only for the wealthy.” The result of a patent-driven research and development mechanism has been that, “Today pharmaceutical innovation is skewed toward areas that promise a profitable return,” she said.

Another concern for MSF is to preserve flexibilities for developing countries in meeting the terms of international treaties. She charged that WIPO is working through its Substantive Patent Law Treaty talks to “close off” flexibilities that are available under the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) and the declaration on intellectual property and public health that emerged at the launch of the Doha Round of negotiations at the WTO.

“What we fear is the birth of a TRIPS 2,” before we examine the effects of the first TRIPS (which went into effect in 1995), said ‘t Hoen. She also criticized WIPO’s “one size fits all” effort to harmonise nations’ patent laws, saying it “may negate” governments’ abilities to address their own public health needs.

A representative from the Third World Network (TWN) criticized the implementation of TRIPS as harmful to developing countries, causing high prices and limiting the availability of essential goods. She suggested that WIPO should rethink its support for the expansion of intellectual property rights.

“It appears that WIPO is taking on a maximalist agenda of the more rights the better,” the TWN representative said.

TWN called for a review of existing WIPO treaties to determine whether they benefit developing countries. It also suggested an analysis of the impact of TRIPS, consideration of new treaties such as one promoting “access to knowledge,” improvements in technical assistance, and make WIPO more member-driven and inclusive (specifically attacking a recent consultation by WIPO Director General Kamil Idris with selected members in Casablanca, Morocco).

European Digital Rights also stressed the need to assess developmental impact of the setting of rules (“norms”) for intellectual property.

Eric Noehrenberg of the International Federation of Pharmaceutical Manufacturers and Associations said the future of intellectual property and development lies with implementing TRIPS. He cautioned against “nostalgia for the days before 1995 [when TRIPS went into effect],” adding, “Those days are gone.”