Academics Debate How To Release ‘Revolutionary’ Power Of Development Agenda

The Development Agenda at the World Intellectual Property Organization is a “potentially revolutionary” agreement, according to a book released this month, but whether it will fulfil that promise depends on its implementation into concrete practice, said a panel of academics at the book’s launch.

“All of the pieces are in place for meaningful changes to occur,” said book editor Jeremy de Beer of the Emerging Dynamic Global Economies (EDGE) Network at the University of Ottawa Law School.

WIPO is “at the cusp of successful implementation” of the agenda, he said. But if WIPO does not manage effective implementation, the consequences will affect not only critical matters of IP and public policy, but also risk marginalising the organisation itself.

De Beer was speaking at the launch of the book “Implementing the Development Agenda,” co-hosted by the EDGE Network and Geneva-based think tank IQsensato on 10 July.

The Development Agenda, said Maximiliano Santa Cruz of the Chilean mission in Geneva, is “one of the most important things to have happened in international intellectual property” in the last several years, and is the “most progressive agenda we’ve ever had at WIPO.”

Its biggest achievement and challenge is the change of culture around IP protection, he said. Some fruits of this have already been seen, and there is a “fantastic opportunity” to continue to affect change.

Changing culture matters because “IP is essentially a rhetorical construct,” said Christopher May, a professor at Lancaster University. “And therefore a swing in rhetoric is quite profound as far as the definition of IP itself.”

The Implementation Challenge

Implementation of the Development Agenda will be complicated, however. First, there is a schizophrenia at the national level between different stakeholders whose work touches on IP, said de Beer, quoting from a chapter of the book by Peter Yu, the director of the Intellectual Property Law Center at Drake University Law School (US). There are “very few delegations that can say there’s a consensus domestically.”

And countries must also solve schizophrenia between what is said at the international level and what is done at home, said Carolyn Deere of the Global Economic Governance Programme at the University of Oxford (and founder of Intellectual Property Watch). A Development Agenda will “never have legs on the ground unless member states go home and implement it.”

But IP laws must also be sensitive to cultural norms and context, lest they alienate key stakeholders. Laws that have lost touch with reality are “less likely… [to] be enforced,” said de Beer. More moderate IP laws, with flexibilities, could increase enforcement.

The Move to Partners, Need for Good Governance

In order for implementation to succeed, WIPO will need collaborating partners, said de Beer. This includes industry, he added, where views may be more nuanced than just a push for more IP. For example, there is a shift away from digital rights management in the information and communications technology sector, and some pharmaceutical industry executives have commented that the current model is not sustainable in the long term, he said. It is “only a matter of time” before such ideas become mainstream, he said.

Plans to find partners, said Marcelo Di Pietro Peralta of the WIPO director general’s office, include an open meeting with member states and civil society in September or October. And before the end of the year, there will be another open meeting to discuss the coming of three new thematic projects, he added. WIPO members have agreed to start implementation along the themes of competition; the public domain; and information and communications technology (ICTs) and the digital divide (IPW, WIPO, 4 May 2009).

Others suggested that the stakeholders in successful implementation are broader than sometimes thought. “We need to do away with the false dichotomy between developing countries and developed countries” which does not hold either “empirically or normatively,” de Beer said. There is evidence that technologically proficient developing countries behave differently than other developing countries and in the developed world there are also different needs and motivations, he said.

Stakeholders matter internally, too. The “tremendous power that secretariats have, for better or worse [as they] can be captured by particular stakeholders or state interests” is important to pay attention to, said Deere. “We need to think about the governance of WIPO in order for the Development Agenda to move ahead in the immediate term.”

This includes thinking about staff recruitment and incentives and reward systems, she added. “How do you move up in WIPO?” asked Deere. This is one way of signalling to staff what the priorities are. Also needed are a concrete policy on public participation, guidelines for transparency (it is currently unclear how civil society participates, especially in areas like capacity building), thought about how to integrate WIPO into the broader UN family, and some kind of independent evaluation process for how the organisation is operating.

And “WIPO needs to think about who it is they are speaking to within a government. Intellectual property offices may not always be the best partner” in capacity building exercises, Deere said.

A Changing World Could Change IP

But a key thing to consider is that the “Development Agenda was launched in a very different world than the one in which we find ourselves today,” said May. This world – the financial crisis – could represent the “end of a specific sort of capitalism which has been running for the past 20 or 30 years,” he said.

Of course, there are structures “for IP continuing in the same way quite apart from what happens elsewhere,” he said. “We’re going through some kind of transition period where we aren’t sure what the system will look like.”

The new public policy challenges of climate change and the financial crisis mean there is a lot of creative work to be done, said Ahmed Abdel Latif of the International Centre for Trade and Sustainable Development (ICTSD). Economic constraints could, for example, see people lending more books, and cause a greater drive towards open access projects.

Politically powerful countries are no longer necessarily also the leaders of technology, May said. The World Trade Organization Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement was originally seen as a floor, upon which further things could be built. But this may come to be seen as an over-extension, he said. On the other hand, powerful countries in a time of upheaval could look to protect resources they already have.

The central problem remains balancing private rights with public benefits, and the likely future scenario is towards a system that seeks pragmatic choices for how to treat knowledge, depending on sector and context, he added.

The message in the Development Agenda is not “go open source, open access,” said Abdel Latif, but rather to “choose what is best for you, try to look critically” at IP laws, make them fit to the local situation.

Cultivating Academic Attention

One of the goals of the Development Agenda, said Abdel Latif, was to attract scholarly attention to WIPO, which had previously been seen as a technical body. The book is itself, in a sense, implementing the Development Agenda, he said.

There is “remarkably little out there on WIPO as an international organisation,” said Deere, which is unusual considering the amount of academic literature that has been produced on the World Bank, for instance.

The Development Agenda, said Darren Smith of the Canadian mission, “is kind of like a train in which we’re laying track in front as it continues to move. It might just need a little more time to figure out what has been accomplished and whether it meets our expectations.” But, he added, while other committees at WIPO have seen “varying levels of success,” the Committee on Development and Intellectual Property continues to move forward and “is progressing.”