WIPO’s Assistance To Developing Countries: Taking Forward The Unfinished Reform Agenda

By Carolyn Deere Birkbeck, Global Economic Governance Programme, University of Oxford.

At this week’s Committee on Development and Intellectual Property (CDIP), WIPO Member States continue to debate next steps on the unprecedented 2011 External Review of WIPO’s assistance to developing countries. With a new Deputy Director General for the WIPO’s Development Sector due to start work this December, the prospect of new leadership also marks a time for Members to provide clear direction. They should act this week and in the coming months to set clear priorities for the Secretariat – and for themselves – that would give greater focus to the ongoing work of improving WIPO’s development cooperation activities, and to establish a mechanism for monitoring progress.

An Unfinished Reform Agenda

While a full assessment of the process and politics of the follow up to the Review is well beyond the scope of this note, several contextual remarks are needed.

At the heart of the 2011 Review was a critical assessment of the way in which the Secretariat and Member States go about the business of planning, implementing and evaluating WIPO’s development cooperation activities. On all three fronts, the Review provided evidence of many fundamental problems. Here it is important to recall the landmark nature of the review – never before had a comprehensive internal or external review of the suite of WIPO’s assistance been undertaken. The positive news from the report was its recommendations – which provided guidance on how many of the problems can be addressed with commitment by the Secretariat and careful oversight from Members and stakeholders.

Despite three years of meandering discussions dominated by procedural debates, the Review report, subsequent recommendations by Member States in writing (such as those in a joint proposal by the Africa Group and Development Agenda Group) and during meetings, as well as decisions by Member States and the Secretariat, have produced some useful progress. This includes greater focus by the Secretariat on defining and measuring the expected results of development cooperation (rather than on simply listing completed activities); greater transparency of resources available from Funds-in-Trust for development activities by Program; the mainstreaming of a number of CDIP projects into WIPO’s ongoing development cooperation activities; and a strategic review of the WIPO Academy.

However, there is still a long way to go for achieving the vision for WIPO’s development cooperation set out in Recommendation 1 of the Development Agenda (i.e., WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion).

In several areas where the Secretariat has taken action in response to recommendations, the result has fallen short of reaching the underlying objectives. The database of consultants and WIPO technical assistance; the technical assistance manual (which included a template for country assistance plans); and the brochure on WIPO’s assistance programs, each lack key information needed to make them the much-needed tools for transparency and strategic guidance that Members envisaged.

There are also some instances where the Secretariat’s statements may give the impression of greater progress than is the reality. Since the first CDIP meeting on the Review, the WIPO Secretariat has argued that the recommendations for country plans and IP strategies are well underway. However, as noted in the 2014 report by WIPO’s External Auditor, the number of country plans that actually exist is not clear, nor are these easily available for review. Similarly, while the Secretariat speaks often of the methodology and tools that emerged from its CDIP project on IP strategies, these strategies are as yet in place for only a small minority of recipient countries. To ensure development-orientation in both country plans and IP strategies, the point is not that these should be rushed; on the contrary, they demand careful reflection and consultation. But Members should not be under the illusion that these are meanwhile widely in place.

Further, the Secretariat acknowledges that evaluation and data-gathering on its development activities remains limited and ad hoc. The IOD’s two country portfolio evaluations have been useful undertakings as have individual DA project evaluations, but these do not fill the much wider gap in WIPO’s evaluation culture. Too few development activities integrate effective evaluation processes from design to completion. Although WIPO’s Results-based Management (RBM) process has introduced greater attention to expected results across WIPO, there is still need to refine the expected results and performance indicators for many development activities. The Secretariat also concurs that it still has a way to go on improving internal coordination to reduce duplication and maximise synergies for development impact.

Finally, although several of the CDIP projects reflect the broader goals of more development-oriented assistance, such as South-South sharing of experiences of different uses of the IP system, options for tailoring national IP laws and institutions to national needs, and impact assessments of some laws and treaties, much work remains to embed development-orientation in WIPO’s activities.

A critical gap, for instance, is the lack of an adequate definition of what counts as a WIPO development cooperation activity. Until Members come to such an Agreement at the Program and Budget Committee, Members lack adequate tools for tracking where WIPO’s money for development cooperation is going and for what purposes. A further gap is the absence of a policy framework to guide WIPO’s partnerships with other international organisations and with stakeholders – as recipients and providers of assistance and as co-hosts of events and training – to ensure these reflect the Development Agenda’s call for development-orientation.

The Need for Ongoing Oversight of Improvements

Remarkably, in discussions so far this week, some developed countries proposed that there is no need for further action on the Review’s recommendations. This position makes no sense.

Developed countries are perhaps the greatest advocates of more effective IP systems in developing countries. Most developing countries concur on the need to put in place relevant IP laws, durable institutions, and effective processes for IP-related policymaking and stakeholder consultation that advance their development goals.

It is surely self-evident that just as the reform of IP laws and institutions in developing countries – and the task of engaging the diversity of relevant stakeholders – is an ongoing process, the improvement of WIPO’s development cooperation programs is also an iterative process of change that will be ongoing for several years. It will take careful oversight from Member States, as well as adjustments over time.

Both Member States and the Secretariat must view the External Review and the follow up to its recommendations as a multi-year process; as a work in progress with many potential outcomes, not as a single CDIP ‘project’ with a one-off, time-bound outcome before completion. (Indeed, the Secretariat itself has noted that action on the many Review recommendations that it agrees with is not yet completed, but is being undertaken on a continual basis.) It also makes no sense for Members in other WIPO bodies (such as the SCP and the SCT) to stall their deliberations while awaiting ‘the outcome’ or conclusion of the Review process.

Viewed in this way, Members should see the External Review item on the CDIP agenda as a central part of the Committee’s ongoing work program – and to use it more strategically and purposively as a focal point for improvement and strengthening of WIPO’s assistance to developing countries. This regular agenda item could have three roles:

1. Progress Reporting by the Secretariat. Already, in 2013 the Secretariat presented to the CDIP a very useful and detailed report on the status of their efforts to implement certain Review recommendations (see CDIP/11/4). Members should request a similar report on an annual basis. While useful tools, the CDIP project reports are too specific, and organisation-wide Program Performance Reports too general to provide the necessary evidence of progress and outcomes. Now that the 2013 model for such a report exists, the burden of updating it annually should not be too onerous and would provide vital information for all involved.

2. Member State Decision-making. Here, Member States would have the opportunity to adopt recommendations to improve WIPO’s assistance to developing countries on an ongoing basis. In order for Members to keep track of exactly how much progress is being made over time, Members should take greater care to provide clear benchmarks and timelines for action by the Secretariat, and where relevant by Member States themselves.

3. Independent Verification: At present, Member States rely on Secretariat’s own self-reporting on progress with reforms. The example given above of an apparent overstatement of progress on country planning highlights the need for independent verification. Here, Members could request that WIPO’s Internal Oversight Division verify key elements of the annual ‘status of implementation’ report proposed above.

Three Priorities for Decision-Making: Boost Transparency, Improve Planning, More Evaluation and Knowledge-Sharing

Building on the Review recommendations, subsequent proposals and the content of debates among the Membership, there are three clear areas where Members can and should adopt recommendations that would make a real difference to WIPO’s development cooperation.

1. Transparency is key to oversight by Members and stakeholders and matchmaking between donors and recipients. In addition to adopting a definition of development expenditure, Members should call for greater transparency of: the performance of consultants, and conflicts of interest; the work of regional bureaus (the largest proportion of WIPO’s development spending but the least transparent in terms of specific Program goals); bilateral negotiations on the use of extra-budgetary contributions for WIPO’s development cooperation; the content of its technical assistance portfolio by including budget and substantive information on the projects and evaluations in its on-line database; and the outputs and evaluations of work by external consultants listed in its database. Governments should also call for a peer review policy for WIPO-commissioned studies, and greater reporting by the Global Challenges Division to the CDIP to enable Member State input on the governance and activities of its multi-stakeholder platforms aiming to assist developing countries.

For their part, governments should agree to make their strategies and country plans publically available on WIPO’s website. For the same reason, developing country Members should agree to make the legislative and institutional advice that WIPO provides them publically available (while retaining the possibility of excising sensitive paragraphs). Members that make extrabudgetary contributions to WIPO should agree to a Donor Roundtable that would be open to all Members to attend.

2. IP strategies and country planning: Members should work with the Secretariat to devise concrete benchmarks for WIPO’s progress on country planning (i.e., number of plans by a particular date), and to ensure country plans are linked to IP strategies and, in the case of LDCs, to the ‘needs communications’ they submit at the WTO. IP strategies formulated through multi-stakeholder national consultative processes, aided by relevant experts, would be a critical tool for realising the vision of demand-driven, development-oriented assistance. Developing country Member States have a lead role to play in making sure this happens. To build confidence, more developing country Member States themselves should put up their hands to engage in processes of country planning in the next two years, and in multi-stakeholder processes for the development of national IP strategies that reflect their development needs and circumstances.

3. Evaluation and Knowledge-Sharing: Monitoring and evaluation of the impact of the resources WIPO devotes to development cooperation is vital to learning lessons and improving future assistance, and also as a tool for the oversight and accountability critical to good governance. Members should ask for the Secretariat to produce a draft evaluation policy and process for its development activities for consideration by the CDIP next year. Members should also call on the Secretariat to make a proposal for improving the accessibility and public dissemination (such as through WIPO’s website) of the significant range of country reports, case studies, and sectoral experiences produced as part of the CDIP process and through other WIPO work on matters relevant to IP and development. Greater attention to making use of this knowledge would help ensure that the range of WIPO’s development assistance activities are better informed by expert knowledge on impacts, opportunities, and development-oriented options in the IP policy arena, and enable South-South learning from each other’s reform processes.

In sum, Members can stop themselves from retrenching to pre-Development Agenda-style posturing – this is the week to do so. They can start by viewing the Review as a process, with an ongoing need for follow-up, and by adopting decisions on the shared priorities proposed above.

Dr. Deere Birkbeck was co-author with Dr. Santiago Roca of the 2011 External Review of WIPO’s Technical Assistance in the Area of Cooperation for Development.