Proposed WIPO Strategic Plan Shows Positioning For Uncertain Future

The importance of knowledge is increasing at a rate faster than patent offices can keep up with the demands of new inventors, reads the introduction to a proposed six-year strategic plan of the World Intellectual Property Organization. Creators and manufacturers of knowledge products are rapidly diversifying geographically, new innovation models are arising, and new demands are being placed on protected works for use in technology transfer or for shared global needs such as environmental sustainability or public health.

This rapid and profound change in the way innovation is done and perceived requires new thinking in the ways WIPO can best serve its stakeholders in this new environment, the plan says. This “medium-term” strategic plan covers the years 2010 – 2015.

The proposed path for WIPO in this changing landscape is laid out along seven substantive goals forming a “strategic framework”. These include: balanced evolution of the international normative framework for IP; provision of premier global IP services; facilitating the use of IP for development; coordination and development of global IP infrastructure; becoming a world reference source for IP information and analysis; international cooperation on building respect for IP; and addressing IP in relation to global policy issues. Two additional meta-goals are also listed – creating a responsive communication system between WIPO and stakeholders and an efficient financial and administrative structure.

Member states were given the opportunity to make comments on the plan after the publication of the first draft in May. There are currently two drafts available, one dated 27 May 2010 and one dated 29 July. The July draft is intended to reflect member state comments to the May draft.

A meeting of member states with the director general scheduled for 19 August will discuss the July draft before it is sent to the WIPO Program and Budget Committee, which will meet from 1-3 September, a WIPO official told Intellectual Property Watch.

The strategic plan then will be submitted to the annual decision-making WIPO General Assemblies, taking place from 20-29 September. If adopted, the plan will “provide high level strategic direction” to WIPO, according to its website.

Adding difficulty is that WIPO must make its adjustments to these changes at a time when “global economic recovery remains fragile,” the plan reads. The original May draft gloomily reported that the organisation could not predict “with confidence how long the decrease in the demand for WIPO’s Global IP Systems may last,” and what impact this may have on WIPO’s finances. And while the July version somewhat more perkily states “the indications are that investment in the creation of knowledge will continue to drive up demand for WIPO’s Global IP Systems,” the impact of economic downturn is “uncertain.”

The comments of the United Kingdom on the May draft suggested that “for every extra outcome asked by member states, we would propose a rule that they should also suggest an outcome which WIPO should no longer do and which should be deleted from the” strategic plan in order to make sure the budget is “fairer.”

Drafts and Comments: Introduction

Intellectual Property Watch obtained some of the member state comments on the May draft. Comments were submitted by several regional groups such as the African and Arab groups, the Development Agenda Group, and by about a half-dozen individual governments of developed and developing countries, such as Australia, Barbados, China, Mexico, Japan, and the United Kingdom. They are not publicly available.

The UK said it wanted to see more work done in acknowledging the link between “counterfeiting and piracy and organised crime,” and expanding WIPO’s Arbitration and Mediation Centre, among others.

The Development Agenda Group, a newly formed alliance of developing countries interested in strong implementation of development-friendly policies at WIPO, made a detailed series of comments and proposed edits on the May document.

Among them, adding text on the “need to allow [countries] to make use of flexibilities available in the IP system to ensure coherence with their broader development goals” in the strategic plan introduction, and references throughout the document to limitations and exceptions, balanced IP regimes, and policies in line with countries’ levels of development.

Some of these references are now clearly reflected in the July text – as a suggestion that WIPO “add reference to Development Agenda implementation as part of achieving all of the goals” listed in its framework. In the July draft WIPO added language to the strategic framework reading “the principles and 45 recommendations of the WIPO Development Agenda are incorporated in WIPO’s work conducted under all nine Strategic Goals. This is reflected in the narrative thoughout the MTSP,” referring to medium-term strategic plan.

WIPO also added a table (see below) indicating which of the Development Agenda recommendations are implicated for each goal.

Table made by WIPO. Click for full size.

Barbados in their comment questioned the lack of a “feedback mechanism” in the plan, as six years is a long time in the rapidly changing climate.

Perhaps in response to this concern, the introduction to the July draft says the plan should “provide a realistic stable overall strategic framework” for the next six years but is “not intended to be a strait-jacket.”

Strategic Goal One is to balance evolution of the international normative framework for intellectual property, which WIPO describes as aiming to “ensure that the development of international IP law keeps pace with the rapidly evolving global, technological, geo-economic, social and cultural environment.” While “taking into account implementation of the recommendations of the Development Agenda on norm-setting,” WIPO adds in the July draft, in response to a DAG recommendation.

Among the critical challenges, WIPO says, is “a lack of progress in the normative work of the Organization,” with governments unable to reach agreement in several areas.

The DAG comments on the May draft counter that there is a “growing convergence of views among” governments but that “balanced approach towards a multilateral agreement … is being undermined by bilateral and plurilateral agreements and discussions on TRIPS plus IP enforcement standards in other forums.” This was not included in the July draft, though other DAG comments on flexibility and the importance of the public domain were.

WIPO’s May draft says achieving this first goal requires them “to provide an impartial and professional environment, which facilitates the decision-making of” governments. The UK suggested adding to this language “ensuring committee agendas are comprehensively and fairly covered as far as possible.” This line was added in the July draft.

The UK said in its comments their proposal was intended to introduce the possibility of “alternative methods to discussion where differences could be resolved in a timely manner [on the issues of copyright issues such as the visually impaired treaty and the protection of audiovisual performances and broadcasting organisations] to ensure progress is made concurrently on different issues. It said this is part of recognising the “wider work” of the Standing Committee on Copyright and Related Rights, which recently has been focussed on negotiating a treaty on copyright exceptions to aid access to reading material for the visually impaired.

The second goal addresses the income-generating aspects of WIPO and aims to make its patent cooperation and dispute resolution services the “first choice for users” worldwide.

Comments on this section included China, which said WIPO’s statement in the May draft that very few applications to the Patent Cooperation Treaty (PCT) originate in developing countries “did not seem to be accurate, and should be amended according to the realities.” WIPO amended it to say that 93 percent of PCT applications originate in five jurisdictions and that participation by the majority of developing countries is limited. China appears to be an exception to this rule, according to 2009 PCT statistics.

And Australia suggested that helping countries address the patent backlog problem be added to strategies for improving the PCT. This was added to the July draft by WIPO.

Japan questioned a specific reference to finding research-based strategies to “disposing of seized counterfeit goods in a development and environmentally friendly way.” It said this was too specific for a strategic plan and possibly not appropriate as direction on that issue has not been agreed by members.

In the July draft, WIPO also said a survey conducted by the Arbitration and Mediation Centre will help improve understanding of user needs, and says “the availability of neutral, affordable procedures for the resolution of disputes between stakeholders could contribute to the successful functioning of mechanisms designed to promote green technology transfer.”

The third goal addresses the use of intellectual property for social, cultural and economic development. The African Group commented that this section inappropriately reflected Development Agenda goals. The DAG more specifically added several references to access to “IP protected knowledge and products, processes and services” and the need for IP systems be “nationally appropriate” and tailored to their level of development. These are largely now reflected in the July draft.

WIPO in the July draft also added a cautionary note about budgetary needs to meet increasing development-related demands. “As overall demand increases for the services WIPO provides to support developing countries use [sic] the IP system, so does the need for partners and resources to help ensure those needs are met in a way which maximizes their development impact,” it reads. Thus elements of goal seven, on building partnerships, are essential, WIPO says.

The fourth goal intends to capitalise on the information and communications technology revolution and its capacity to increase the efficiency of international cooperation on IP and improve the infrastructure of national IP offices in developing countries.

The fifth substantive goal is for WIPO to become the global portal for IP information. Among other suggestions, it included a proposal to include advertising in collections of WIPO data in an attempt to financially support data distribution. Japan raised a concern about the appropriateness of this measure “from the view point of fairness and neutrality as international organization.” WIPO in the July draft added language promising WIPO would study the issue and that “any proposed advertising model must not compromise the impartiality of WIPO.”

“Respect for intellectual property is a basic tenet of membership of WIPO,” reads the sixth goal, which aims to build respect for IP beyond simply enforcement.

Here, the July draft removes – seemingly reflecting DAG comments to the May draft – a line reading: “regardless of their classification on the development scale – [countries] confirm the continuing, devastating implications of counterfeiting and piracy on health, safety, innovation and economic development.” Use of the word counterfeit to describe fake medicines is highly controversial at the World Health Organization and other international agencies.

The final substantive goal deals with the interaction between intellectual property and major issues of global public policy.

Within goal 7, WIPO listed several of these key partners, including “World Health Organization (WHO) on the interface between IP and public health; the UN Framework Convention on Climate Change (UNFCCC), the UN Environment Programme (UNEP), and World Meteorological Organization (WMO) on issues relating to IP, technology and climate change; the Convention on Biological Diversity (CBD) on aspects of biodiversity which are relevant in particular for WIPO’s work in the area of traditional knowledge and genetic resource,” and several other development agencies.

Also added to the July draft are comments on the importance of patent landscaping and the provision of other relevant patent information needed to determine the status of patents within different countries. A particular note is made about WIPO providing “information on the legal status of patents on environmental technologies, and information on practical ways of ensuring access to, and local development of, such technologies in developing countries.”