WIPO Development Committee Makes Careful Progress On Implementation

By William New
Members of the new World Intellectual Property Organization Committee on Development and Intellectual Property (CDIP) this week are negotiating implementation of agreed changes to WIPO practices intended to ensure they are development-friendly.

Perhaps predictably, countries with the majority of the world’s intellectual property rights, the leading developed countries, are generally providing an extra note of caution to possible changes to WIPO procedures. But they also have worked to present a tone of supportiveness for the process. In general, the spirit is careful but more amorphous, and not as tense as in recent years’ Development Agenda negotiations.

With lingering tension over the Coordination Committee nomination of new WIPO Director General Francis Gurry, an Australian and favourite of developed countries, some suggested they do not want to take strong opposition positions until after the September General Assembly that would finalise his election.

Gurry opened the week addressing the body with a commitment to the Development Agenda, calling it an opportunity to address development, and assuring delegations that the appropriate financial resources would be made available for implementation.

The process of implementing 45 recommendations on development agreed by the 2007 General Assembly (and being addressed in clusters of early harvest and longer term) has led to a process that in a sense puts WIPO on trial before member states to explain how each of its activities addresses a development dimension. Senior WIPO secretariat officials from committees addressing policies in areas such as technical assistance, patents, copyright, genetic resources and traditional knowledge have given explanations and faced questioning.

On Thursday, there was some push back from the United States and others on the degree to which the CDIP can tell other WIPO committees what to do, according to participants. The United States said it found it “unacceptable” and “troublesome” that the development committee would “intrude” into the procedures of other committees.

But several developing countries, including Algeria and South Africa, stressed that the committee is under mandate to make recommendations related to other committees. Brazil said the recommendation in question, Cluster B, number 22, which calls for WIPO’s norm-setting activities to be supportive of the development goals agreed within the United Nations system, is an attempt to bring the IP agenda back into the “mainstream,” sources said. Developing countries emphasised that limitations and exceptions to IP rights are not tangential to the rights system but rather part of the IP system itself.

Both sides cited “balance” as a goal in the implementation, but interpretations appeared to vary, participants said.

The Group B developed countries floated a proposal to add wording on budget and governance issues for the committee report to the General Assembly. The proposal would call for the WIPO Programme and Budget Committee to review the human and financial resource implications of the approved activities.

An extraordinary General Assembly is expected to take place immediately after the December Programme and Budget Committee meeting in order to adopt a revised 2009 budget, the proposal said. Members appeared to agree during the week that the PBC would look primarily at budgetary issues, not the work, of the CDIP.

Chair’s report

Chairman Trevor Clarke of Barbados on Thursday night circulated a draft of the summary he expects to send to the General Assembly. The summary, available here, lists the recommendations the group has discussed in its two meetings this year. The first meeting was held 3-7 March (IPW, WIPO, 3 March 2008). The draft includes reference to future work related to the agenda.

The draft summary of the March and July sessions is being taken up on Friday with members making changes.

“We are at the start of implementation of a lot of issues,” the chair told Intellectual Property Watch Thursday night. “I think the committee has agreed to go slowly and get things right. There still are some sensitivities.”

One such sensitive area might be flexibilities within international rules on trade and IP, according to sources. For many developing countries, the flexibilities in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) represent ways. They may not have to apply the rules, and they want technical assistance to help them understand when and how to use the flexibilities. But a WIPO official has told the committee that flexibilities only represent the ability of countries to implement TRIPS in ways most appropriate to them. Developed countries have shown concern that in addressing flexibilities, including through technical assistance, does not result in new rights and obligations, sources said.

The group has focussed on recommendations in cluster A of the 26 that are seen as needing more time and resources, as well as the cluster A of the 19 recommendations that could be more quickly implemented, plus a first reading of three recommendations in cluster B in the list of 26.

Regarding progress on the recommendations, a Brazilian official on Thursday differentiated between “getting far and getting a robust agreement.” The emphasis is on getting “effective, sound” agreements. “All implementation aspects are being addressed,” the official said.

The Friends of Development, which includes Development Agenda originators Brazil and Argentina along with 13 other developing nations, issued a “non-paper” (having no official status) at the start of the week. It spelled out their view on each of the 45 recommendations to be implemented.

Tunisia also spoke on the issue, suggesting that the development dimension has not been fully taken care of in other committees, sources said.

Jamaica said that the “primacy” of development has now been established at WIPO, and that cannot be done without taking other committees’ activities into account.

After the string of statements, the United States softened its tone to stress a positive view. In general, it emphasised that policy is made based on evidence, and studies be conducted in a policy-neutral way.

It was suggested the committee chair send letters to committees, but the chair said he did not have full support of the committee to do that.

Open Source at WIPO?

Debates from Wednesday have focussed on issues such as the public domain, IP and competition, and creation of a patent database.

A discussion of open source software and Creative Commons licensing was held, which is uncommon for the IP rights-focussed institution that several years ago would not have held such a discussion, although a WIPO official presented it to the meeting as a longstanding technology, sources said. Open source is viewed a licensing matter, and developed nations such as the United States characterised it in the meeting as a “pro-competitive licensing” issue.

Developed countries wanted to hear more detail about a database before agreeing.

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