WIPO Development Agenda Needs More Promotion, Country Involvement, Experts Say

Has the adoption of the World Intellectual Property Organization Development Agenda in 2007 changed the culture of the organisation, and what did it achieve? According to panellists at a side event to this week’s WIPO General Assembly, the Development Agenda has not yet changed the culture of the organisation and its primary focus to support and protect intellectual property. However, WIPO should follow the United Nations Sustainable Development Goals and collaborate with other UN agencies to include development consideration in its work, they say.

The South Centre organised the side event on the future of the WIPO Development Agenda with speakers coming from the academic, government, international organisation, non-governmental organisation, and civil society sectors. The panel was held alongside the annual WIPO General Assembly taking place from 3-11 October. Each speaker gave their view on the achievement of the Development Agenda and its future.

The WIPO Development Agenda, formally adopted in 2007 after intense negotiations between member states, includes 45 recommendations to streamline a development dimension into all WIPO activities.

[Update:] Speakers indicated that the Development Agenda had been positive, that the discussion of IP and development is different now than it was at the time the agenda was adopted, and that understanding of the issues at stake and connections between IP and development is now higher.

Pedro Roffe, long-time IP and development expert who co-authored an Independent Review [pdf] of the Implementation of the Development Agenda Recommendations this summer (IPW, WIPO, 23 August 2016), said most of the 45 recommendations are basically invitations or requests made to WIPO as an organisation to do a number of things, based on a few basic principles. One of those principles is that technical assistance delivered by WIPO should be development-oriented. Another of those principles concerns norm-setting.

The review is on the agenda to be discussed at the 31 October to 4 November meeting of the Committee on Development and Intellectual Property (CDIP).

The issue of development is a long-term aspiration, he said, and changes do not happen from one day to the other, but the real test is what is happening at the national level. The culture in WIPO relies too much on what the secretariat should be doing or not doing, he said. It is important to remember that WIPO is not a development agency, he said, although it should interact with development agencies such as the UN Development Program and the World Bank.

Maximiliano Santa Cruz, director of the Instituto Nacional de Propiedad Industrial (INAPI) in Chile, and former Chilean delegate at WIPO, said the Development Agenda goes beyond its 45 recommendations.

The patent offices of the 21st century cannot only concentrate on delivering patents and trademarks but they have to go back to the basic idea that IP rights are exclusive rights but also serve as a tool for the diffusion of knowledge, he said.

Governments need to do more, he said. Intellectual property needs to expand to other UN agencies, such as the World Health Organization, and public health needs to be discussed also at WIPO, he said. WIPO should integrate the UN Sustainable Development Goals (SDGs) in broad terms and governments should be bringing development issues to different WIPO meetings, not only to the Committee on Development and Intellectual Property (CDIP), he said.

The CDIP was created in 2008, in particular to develop a work programme for implementing the 45 Development Agenda recommendations. The core of the CDIP work is made of capacity building projects led in developing countries.

Development Agenda Little-Known Outside Geneva

Christoph Spennemann, legal expert in the Intellectual Property Team, Policies and Capacity-Building Branch, Division on Investment and Enterprise at the United Nations Conference on Trade and Development (UNCTAD), said UNCTAD mainly works at country level.

For UNCTAD, Recommendation 40 of the Development Agenda is the most relevant as it instructs WIPO to intensify its cooperation on IP related issues with United Nations agencies. He said in his experience, the WIPO Development Agenda is not very well known outside of Geneva and rarely mentioned in capitals, although countries are well aware of their development objectives. There is a sort of disconnect between what is happening in Geneva and at capital level, he said.

As a member of the UN family, WIPO should follow the SDGs, noted Spennemann. The SDGs will not fundamentally change WIPO’s mandate, he said, adding that from the substantive point of view, there is a need to strike a balance between exclusive IP rights and the public domain. In workshops organised by UNCTAD in developing countries, each UN agency brings its own expertise. It is a good sharing of competencies and responsibilities, he said.

According to Spennemann, developed countries should recognise the role of IP in their own development path. The United States and the European Union have used IP as a tool according to where they stood in their development, he said. There were no pharmaceutical patents in Europe before the 1960s and 1970, he noted. Developed countries should be more transparent about that and acknowledge the role of flexibilities in their own development, he added.

WIPO Not Serious Enough in Promoting Development Agenda

Carolyn Deere Birkbeck, senior researcher at the University of Oxford’s Global Economic Governance Programme (and founder of Intellectual Property Watch), a co-author of the 2011 External Review [pdf] of WIPO Technical Assistance in the Area of Cooperation for Development, said many people are saying that the CDIP projects are a very positive step, she said.

However, “Could we say that the secretariat is taking the leadership? Has it embraced the Development Agenda, it is proactive and promoting it in capitals around the world and driving it forward?” she asked. The answer is no, she answered, adding “there is a long way to go.”

Although some developed countries have taken a strong interest in the IP for development discourse, developed countries have been generally resistant to any institutional reform that aimed to place development more explicitly at the heart of the WIPO’s work, she said.

The CDIP process over the last 8 years has led to a “huge amount of frustration,” exhaustion among delegates, and disengagement from time to time, she said. It involves highly technical reviews of projects and too few delegations have the ability to follow in detail all of the documents, she added.

Looking forward, she said the Development Agenda discussion should continue, as it has been a productive discussion. There should be a discussion of the CDIP itself, and the role of the CDIP in terms of strategic oversight, how to make more effective use of member states time, and the division of labour between member states, the secretariat, and independent experts.

There is a need to think about incentive for the WIPO senior management to take the promotion of the Development Agenda more seriously, she said. There is very little performance review of the director general on this point, for instance. Whoever is in charge of this organisation needs to have some clear benchmarks from member states and what they are expecting from the Development Agenda implementation, she said.

She also remarked on the need to tackle the question of the management of external actors, such as civil society and industry. There is no particular policy on how to manage external actors and how to address potential conflicts of interest, she said.

There is also a need to discuss the organisation’s governance, its mandate and its financing, according to Deere-Birkbeck. WIPO has a privileged position in the UN system with 95 percent of its income coming from the private sector. This poses the dilemma of how to maintain the accountability to member states in that context, she said.

In most organisations, member states have the ultimate pull. They can pull their money out if they are not satisfied. There is a persistent view among the US and Japan that their private sector, as the main financers have the right to say how WIPO spends its resources. However, the private sector are clients, they have a right to say, but not on how the organisation’s money should be spent, she added.

Time to Renegotiate Development Agenda?

K.M. Gopakumar, legal advisor and senior researcher with the Third World Network (TWN), said the Development Agenda recommendations were born out of a compromise and are “merely a list of agreed recommendations without any preamble or definitions of terms such as ‘development-oriented,’ or ‘demand-driven.'”

Different interpretations are thus made. Developing countries argue that the Development Agenda means enhanced consideration of development implications of IP, while developed countries stand for the promotion of IP protection with the assumption that it is inherently good for development, he said.

According to Gopakumar, the WIPO Convention does not suit the vision and aspirations of the majority of its member states concerning the approach to IP, since its focus is on the efficient protection of IP rights and harmonisation of national legislations, which runs counter to development objectives, he said. This gap is filled to a certain extent by the Agreement between the United Nations and WIPO, he said.

However, there is no discussion on this agreement at WIPO, which should be discussed at the General Assembly each year and should have an accountability mechanism. Everything at WIPO continues to be viewed through the lens of IP, he said. And there is no recognition that IP can constitute a barrier to affordable access. He called for the UN Joint Inspection Unit to conduct an inspection and see if WIPO’s activities conflict with the UN Charter.

He also called for a change in WIPO human resource policy, and a revision of WIPO’s code of ethics to avoid “revolving chairs” and the establishment of a conflict of interest policy.

Conversation in CDIP Back to Pre-Development Agenda

According to an Egyptian delegate in the audience, there is a lack of coherence between ministries at the national level, which sometimes is translated in WIPO committees’ discussions.

The establishment of the CDIP was good but where it stands today brings the discussions back to a pre-Development Agenda committee, which then dealt only with technical assistance, she said.

She agreed that governments should bring issues into WIPO to be discussed but she said there is a lack of political will and some proposals are resisted. She mentioned the Standing Committee on Law of Patents (SCP) in which some developing countries, such as those in the African Group, have proposed to discuss patents and health but were met with resistance.

For example, she said in the discussions on health and medicines at the SCP, “if you try to get the UN special rapporteur on the right to health to WIPO, you get resistance from developed countries,” she said. But if developing countries try to bring the discussion on patents and health to the Human Rights Council, they are then sent back to WIPO.

 

Image Credits: William New