WIPO Committee Approves Proposals For Development Agenda

By William New
Two-and-a-half years after the introduction of proposals to make the World Intellectual Property Organization more favourable to developing countries, a preliminary agreement has been reached.

“What we got was meaningful and balanced,” a Brazilian official said afterward. “So what we get in the next meeting becomes less of an issue.” Brazil was one of the originators of the effort to bring a greater development focus into WIPO.

WIPO members negotiated on 40 proposals on development in the Provisional Committee on Proposals related to a WIPO Development Agenda (PCDA), held from 19 to 23 February. By week’s end, they had compressed them into 24 agreed proposals. The next and final PCDA meeting for this year will be held in June, and another 71 proposals will be addressed. [Note: the six-page text of the agreement is available here.]

“We’re satisfied we achieved a concrete resolution after two-and-a-half years,” a US official said afterward. He attributed the outcome to increased flexibility on the part of the proponents of WIPO reform. This outcome fits with the United States’ preference for “incremental” progress on a Development Agenda, he said.

Proposals include a variety of technical assistance approaches, and to: reinforce the participatory and member-driven nature of WIPO rulemaking; urge preservation and study of the public domain; expand WIPO’s involvement in technology transfer, information and communication technologies (including expanded activities in addressing the digital divide) and access to knowledge; require assessments, evaluation and impact studies; and mildly reform of WIPO’s mandate and governance.

They also approved a proposal for WIPO “to approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that ‘the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations,’ in accordance with Article 7 of the TRIPS Agreement.” TRIPS is the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights.

The remaining proposals will be more difficult to reach agreement on, participants said. It was agreed that the next meeting will focus only on the remaining proposals, and that outcome will be combined with this one and passed on to the WIPO General Assembly, which meets annually in September. The assembly would then take decisions on how to proceed.

The proposal for a WIPO Development Agenda began with Argentina and Brazil in 2004, and has been formally supported by 13 other Friends of Development in meetings on the issue since then. Most of the more substantive proposals of the Friends are in the second batch awaiting negotiators in June.

General Assembly Chair Ambassador Enrique Manalo of the Philippines helped the committee beforehand by grouping the proposals into clusters by themes (IPW, WIPO, 16 February, 2007). Committee Chair Trevor Clarke, ambassador of Barbados, had each WIPO regional group plus the developed-country group take a cluster. The coordinators of each group held lengthy closed consultations with other members during the week and gradually refined the proposals. The coordinating countries are listed at (IPW, WIPO, 22 February 2007).

Clarke said afterward that a “tougher” meeting is expected in June. It involves bigger reform issues such as ensuring that WIPO’s legislative advice to developing and least-developed countries takes into account relevant flexibilities, reflecting the public interest in WIPO’s work, and ensuring that WIPO treaties have preserved space for public policy formation. He said he suggested to coordinators that they meet with him before the June meeting. By the meeting adjournment only the English language proposal text was finished. The WIPO secretariat will circulate a draft report of the meeting by 5 April and members will have until 20 April to comment on it.

Clarke suggested that the General Assembly mandate does not require that all items in the June batch be completed, as the committee can make a recommendation for “continuing the work.” The Development Agenda “is about getting WIPO to continue doing what it does and to do some things,” Clarke said.

An official from a large developing country said the approved proposals would be “fleshed out” later, presumably under direction of the General Assembly. The final version of the proposals dropped the practice of stating which are “actionable.”

The Ebb and Flow of Proposal Language

Proposals clusters were labelled A through F. While most cluster documents apparently went through two or three versions, the African Group’s cluster had nine. The Algerian coordinator for the group said afterward that the group had nearly 80 percent of all of the technical assistance proposals in the total 111 proposals, and also was the first cluster to start work. He noted the accomplishment of removing all of the many bracketed, or unresolved, sections of text.

One of the ways of getting agreement appeared to be the addition in several places of the term “inter alia” (informally “among others”) which had the effect of making the clause more broadly applicable. So when one side wanted to add that technical assistance would promote a “development-oriented” IP culture, another side could agree with the addition of “inter alia.” In another case of broadening the applicability of a proposal, a cluster C proposal calling for developed countries to adopt policies for promoting technology transfer became a proposal for policies that “member states, especially developed countries” could adopt.

Some items during the week were consolidated or removed either because they were seen as belonging to the next meeting’s batch, or because they were seen as outside the mandate of the committee. In some cases, more specificity was added, according to another regional coordinator.

Kyrgyzstan coordinated on the key cluster on norm-setting (rulemaking), flexibilities (exception to rules), public policy and public domain. An official from Kyrgyzstan said they volunteered to chair because Russia – also in their regional group – declined, and because the country is “neutral” since it has both developed and developing country interests. Developing country concern about its coordination disappeared by week’s end.

While Clarke was widely praised for his effectiveness, one official said afterward that this approach would not work with most WIPO meeting chairs. Clarke “made everyone focus on the bottom line,” he said. It is unclear whether Clarke will chair the June meeting.

William New may be reached at wnew@ip-watch.ch.