Developing countries present comprehensive plan to reform WIPO

Developing countries present comprehensive plan to reform WIPO

Martin Khor, Third World Network
Geneva, 11 April 2005

A four-point proposal to establish a "Development Agenda" and reform the World Intellectual Property Organisation (WIPO) has been put forward to WIPO members by 14 developing countries in the Group of Friends of Development.

On behalf of the Group, Brazil submitted a comprehensive 30-page paper containing many critical conceptual points on intellectual property, development and WIPO's performance, and accompanied by concrete reform proposals. It is expected to be the main basis for discussions at a WIPO inter-sessional intergtovernmental meeting (IIM) on a Development Agenda for WIPO to be held on 11-13 April.

The Group comprises Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela. They had co-sponsored a proposal to establish a "Development Agenda" at WIPO's General Assembly on 27 Sept-5 Oct last year. The new paper is an elaboration of the original proposal.

Arising from discussions on the proposal, the General Assembly mandated that WIPO hold inter-sessional intergovernmental meetings be held to discuss the issue (and report back to the General Assembly), and that WIPO organise a public symposium on intellectual property and development.

The new paper contains four main proposals: a review of the mandate and governance of WIPO; promotion of pro-development norm-setting in WIPO; establishing principles and guidelines for WIPO's technical assistance work and evaluation; and guidelines for future work on technology transfer and related competition policies.

In an introduction, the Group says its main concern is to ensure that WIPO activities are driven towards development-oriented results. The basic proposal of the "Development Agenda" is that development should be a central dimension in any negotiation involving IP systems.

WIPO has focused on the diffusion of standardized approaches to IP policies that uncritically assume that development follows suit as IPR protection is strengthened. Current worldwide debate questioning the appropriateness of such an approach has not been reflected in WIPO's work. Rather, discussions in WIPO have overlooked the implications of increased and standardized IPR protection in terms of access to and diffusion of science, technology and related knowledge and know-how.

The Group says the "Development Agenda" promotes a critical examination of the implications for developing countries of the adoption of increased IPR protection, rather than approach this highly controversial issue from the one dimensional perspective of the private rights holders, ignoring the broader public interest.

The "Development Agenda" recognizes that IP is relevant to building technological capacity, but also stresses the importance of public interest flexibilities provided for by the IP system for formulating development-oriented policies.

IP is not an end in itself, but as a means for promoting the public interest, innovation, and access to science. It is incumbent upon WIPO, therefore, to effectively incorporate development promotion as one of its main goals, as already foreseen by the UN-WIPO Agreement.

The balance between the public interest and those of rights holders, as well as the balance between the interests of the scientific community and those of the technology and IP based industries should be struck and IP agreements should address different levels of development of member countries, their social needs and industrial challenges as well as their capacity to participate in and benefit from the IP system.

In its proposal for the review of the mandate and governance of WIPO, the Group says that WIPO as a member of the United Nations family should be guided by the development goals of the U.N and that development concerns should be fully incorporated into WIPO programmes and activities.

The Group proposes that WIPO address impediments to implementing its UN mandate.and that its Member-based governance structures should be strengthened.

The 1967 WIPO Convention specifies the aim to "promote the protection of intellectual property". But the 1974 UN-WIPO agreement established WIPO as a UN specialized agency with the responsibility for "promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development."

It is highly questionable that upward harmonization of intellectual property laws, leading to more stringent standards of protection in all countries, irrespective of their levels of development, should be pursued as an end in itself. WIPO must, as a matter of course, examine and address all features of existing intellectual property rights, including the economic and social costs that IP protection may impose on developing countries on consumers of knowledge and technology in both the North and the South.

Higher standards of protection should be undertaken only when it is clearly necessary and appropriate for the promotion of creativity and the transfer of technology, and where the benefits outweigh the costs of protection. Any attempts to pursue upward harmonization of intellectual property protection, without proper consideration of the potential costs of such initiatives for developing countries and consumers and the public, would be at odds with WIPO's U.N. mandate.

It is important to mainstream the development dimension into all of WIPO's substantive and technical assistance activities. The Group proposes that Members States consider amending the WIPO Convention (1967) to bring it in line with WIPO's mandate as a UN specialized agency

Principles and guidelines should be formulated to govern WIPO's operations. WIPO should operate as a Member-driven institution, where the role of the Secretariat is limited to facilitating the work of the Members and to implementing decisions and instructions received from Members.

A WIPO Evaluation and Research Office (WERO) could be established, which would operate independently of the WIPO Secretariat. Measures should be taken to ensure wider participation by civil society and public interest groups in WIPO discussions and activities;

On promoting pro-development norm-setting in WIPO, the Group says that international IP standards have placed unprecedented limits on the ability of developing countries to tailor their IP regimes to meet their needs.

Challenges faced by developing countries in "enforcement" of higher minimum international standards of protection favouring right holders must be balanced by effective use and promotion of flexibilities contained in the IP system, such as Articles 1.1 and 41.5 of the TRIPS Agreement, which explicitly recognizes that theses countries have retained the freedom to determine the appropriate form of implementation of their obligations in the area of intellectual property.

These standards have been designed and expanded with little consideration for their actual costs and benefits to developing countries. International norm-setting has been dominated by a paradigm that regards IPRs as the only and beneficial instrument to promote creative intellectual activity. Increased scope and levels for intellectual property protection thus often become ends in themselves in international negotiations.

The Group says that WIPO has a significant role in ensuring that IP rules advance development objectives and bears a special responsibility in overcoming current limitations in international norm-setting.

Until now, norm-setting in WIPO has focused on encouraging international agreements solely designed to promote the IP protection, exemplified by the International Bureau's attempt to launch initiatives such as the WIPO Patent Agenda, and its active engagement in support of treaties currently under negotiations, which do not respond to development objectives, are cases in point. To rectify this situation, WIPO should pursue a more balanced and comprehensive approach to norm-setting, emphasizing rules and standards that address the development objectives.

The Group proposes principles and guidelines to apply to all WIPO norm-setting activities, including

Member-driven and Transparent Work Plan. The Group says that the WIPO Secretariat has often played an active role in norm-setting processes, there has not been an adequate debate, the views of developing countries have been ignored, and negotiations have been launched without real consensus. It proposes that the WIPO Secretariat should not play a substantive negotiating role by endorsing or supporting particular proposals. The right and burden should be on Member States to propose initiatives and priorities for the work plan of WIPO and its different bodies.

Assessment and Justification in Terms of Sustainable Development. Any development, implementation or modification of IPR rules should be based on sustainable development needs. All norm-setting activities in WIPO should be based on empirical evidence and on a cost-benefit analysis. The desirability of IP options vis-a-vis other non-IP and non-exclusionary options should be analyzed on a case-by-case basis. Alternatives within and outside the IP system that would reach similar objectives with less monopoly of knowledge (for example, open access models) should be particularly considered. Indeed, WIPO should seek ways to safeguard and promote the public domain and the innovative and creative activities that depend on it.

Recognition of Different Levels of Development. Different levels of development of Member States should be recognised in WIPO norm-setting and reflected in special and differential treatment provisions.

Recognition of the Rights of Different Stakeholders. The Group says that in many cases WIPO solely considers the interests of those that seek new or increased IPRs. In the Copyright committee, little consideration has been given to the rights of performers, authors, educators, students and consumers. Similarly, when future work was discussed in the patents Committee, only the approach of patent holders was focused on. Such a narrow perception of the constituencies should be replaced by consideration of the rights and interests of a broad range of stakeholders, as well as promoting their active and effective participation in WIPO's work.

Compatibility with other International Instruments. WIPO processes and outcomes should be compatible with and support other international instruments that advance those development objectives. For instance, under no circumstances can human rights - which are inalienable and universal - be subordinated to IPRS. IP must support rights and objectives in the Millennium Development Goals (MDGs), the Plan of Implementation of the World Summit on Sustainable Development, and the Convention on Biological Diversity.

Implementing pro-development principles. The Group proposes a "Development Impact Assessment" (DIA) of each norm-setting initiative for sustainable development indicators such as innovation, access by the public to knowledge and products, job creation, poverty alleviation, equity, respect for cultural diversity, protection of biodiversity, health, and education, particularly in developing and least developed countries.

There should be provisions recognizing the difference between developed and developing WIPO Member States in all norm-setting initiatives. These provisions should recognize over-arching objectives and principles of IP protection, provide longer compliance periods, promote transfer of technology, safeguard national implementation of intellectual property rules, suppress anti-competitive practices. Such provisions have been proposed by developing countries in the draft Substantive Patent Law Treaty (SPLT).

The Group also proposes the holding public hearings prior to the initiation of any discussion toward norm-setting in WIPO, with the broad participation of different stakeholders.

The paper says that WIPO's technical assistance (TA) has come under criticism. Concerns relate to the underlying philosophy, content and process of WIPO's technical assistance provision. They also include that IP is seen as an objective in itself; solutions tend to be identified and designed by the providers and not by the beneficiaries of the assistance; there is a tendency to over-emphasize the benefits of intellectual property while giving very little attention to the limitations and actual costs.

Also, the content of the technical assistance programmes has mostly focused on the implementation and enforcement of obligations and not on the use of in-built rights and flexibilities in international treaties for developing countries. WIPO also provides model laws to developing countries without sufficient or any accompanying advice on the trade and development effects of these laws and full analysis of the evidence regarding economic effects.

The Group proposes principles and guidelines to improve WIPO's technical assistance (TA).

It says TA should take account of different levels of development and build countries' capacity to fully use pro-development flexibilities in international agreements. The use of model IP laws without careful evaluation of their effects should be discouraged.

TA programmes should include the use of competition law and policy to address abuses of intellectual property. The provision of technical assistance should be neutral and of advisory nature based on actual and expressed needs. WIPO technical assistance staff and consultants should be fully independent and potential conflicts of interest should be avoided.

The Group also suggested pro-development TA be implemented through technical adoption of the proposed Principles and Guidelines by the 2005 WIPO General Assembly, establishment of Databases and Dedicated Webpage, separating the functions of the WIPO Secretariat, a Code of Ethics and assuring independence of consultants, and indicators and Benchmarks for Evaluation.

The Group also proposes guidelines for future work on technology transfer and dissemination, and related competition policies. It says that patents, trade secrets, copyrights, and trademarks, however, can hamper tech-transfer.

A dynamic approach to transfer technology should incorporate policies with respect to: protection criteria (e.g. patentability); duration of rights beyond a reasonable time to justify rewarding innovation and creativity; exceptions to exclusive rights; use of public tools (e.g. disclosure and working requirements, compulsory licensing, open source software); system of protection relevant to national circumstances; and administrative and procedural aspects.

The paper calls for WIPO to take initiatives to get developed countries to provide assistance to improve the ability of countries to absorb technology; fiscal benefits to firms transferring technologies to developing countries; same tax advantages for R&D performed abroad as for R&D done at home.

It also proposes multilateral initiatives such as commitments like those contained in Article 66.2 of the TRIPS Agreement, a fee on applications through the Patent Cooperation Treaty, to be used for R&D activities in developing countries; and an intermediary conduit to reduce the asymmetric information problem in private transactions between technology buyers and sellers; and a multilateral agreement where signatories would place into the public domain the results of largely publicly funded research.

The Group also proposes measures to boost competition policies. To counter IP-related anticompetitive behaviour, competition policies should be introduced to prevent the abuse of IPRs.

WIPO's technology transfer work may address elements such as: model approaches on how to implement the relevant provisions of TRIPS; the inclusion in new intellectual property treaties (such as the SPLT) of relevant provisions to deal with anti-competitive behaviour or abuse of monopoly rights by rights holders, the development of an international framework to deal with issues of substantive law relating to anti-competitive licensing practices; implementation of intellectual property policies in developing countries should be matched with appropriate enforcement mechanisms that effectively restrain anti-competitive behaviour; Developed countries authorities to undertake, at the request of affected countries, enforcement actions against firms headquartered or located in their jurisdictions.

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