Monday, 9 July 2007

WIPO Development Agenda - As the dust settles,pondering what is in the agenda, whether it is success or hot air

On 26 August 2004, in a sleepy international Geneva; deep into the European summer, the Delegations of Argentina and Brazil in Geneva submitted a proposal for the Establishment of a Development Agenda for WIPO to be considered at the WIPO General Assembly scheduled for 27 September to 5 October 2004. This document was assigned WIPO document number WO/GA/31/11 and transmitted to other WIPO Member States. By the time of the General Assembly, one month later, 12 other countries, namely, Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela were co-sponsors of the proposal. The 14 countries together came to be known as the “Group of Friends of Development”. In October 2004 The WIPO General Assembly formally decided to discuss the establishment of a WIPO development agenda.

On 15 June 2007, approximately 34 months, three General Assemblies, three Inter-Sessional Intergovernmental Meetings on a WIPO Development Agenda (IIMs) and four Provisional Committee on Proposals Related to WIPO Development Agenda (PCDA) meetings WIPO Members finally agreed to establish a development agenda for WIPO. The agenda will be based on 45 recommendations covering issues and measures related to: technical assistance and capacity building; norm-setting; technology transfer, information and communications technologies (ICTs) and access to knowledge (A2K); assessment, evaluation and impact studies; institutional matters including the mandate and governance; and other issues. Though the WIPO General Assembly still has to approve the recommendations, the unanimous adoption of the recommendations at the Fourth PCDA suggests that, barring highly unusual surprises, this will be merely a formality.

In the beginning…

The initial seven page Argentina and Brazil proposal, based on the idea that development was the most important challenge facing the international community and that there was a development dimension that needed to be considered in intellectual property (IP) protection, sought important changes in a wide-range of WIPO’s activities and programmes including with respect to norm-setting; technology transfer, enforcement, technical assistance, and stakeholder participation in WIPO.

In the stampede to place on the table counter-proposals, stake ownership on the development agenda and in some cases plain obstructionism, WIPO ended up with 111 proposals by the 2006 General Assembly. Other proposals had come from the African Group, a group of Arab countries, Colombia, Chile, Mexico, the United States and the United Kingdom. Outside WIPO, the idea of a WIPO development agenda attracted unprecedented attention with discussions in conferences including a WIPO organised conference, the media, academic journals and on blogs. Highlights of events outside WIPO include the Geneva Declaration on the Future of WIPO and the draft Access to Knowledge Treaty.

From the beginning of the process I held the view that the proposal for the establishment of a development agenda and the process established thereafter to consider the form and content of a development agenda for WIPO, offered an unparalleled opportunity, especially for developing countries and public interest organisations, to place at the centre of the IP debate the question of the interrelation between IP and various facets of development. Other than various media comments, I have had occasion to write specifically on possible outcomes of the development agenda process. See, in particular, “Rethinking Innovation, Development and Intellectual Property in the UN: WIPO and beyond” – 2005 and “Essential Elements of a WIPO Development Agenda: What could Constitute Success?” (with Ron Marchant) – June 2007.

As the dust settles; What WIPO development agenda has been established?

The WIPO development agenda, as agreed at the Fourth Session of the PCDA, constitutes the issues and measures covered under the 45 recommendations that are being forwarded to the 2007 WIPO General Assembly in September/October. As per those recommendations, a WIPO development will entail: (a) significant reform of the WIPO technical assistance and capacity building programmes; (b) the establishment of a new development-based framework for norm-setting (treaty-making) activities; (c) consideration of access to knowledge and technology issues; (d) ramping-up WIPO focus and activities related to technology transfer; and (e) introducing a new evaluation and impact assessment framework in WIPO, among other measures.

The reform of WIPO’s technical assistance and capacity building programmes

Significant reforms are envisaged in this area whereby – Development considerations will be mainstreamed in assistance and capacity building programmes; The design, delivery and evaluation of assistance and capacity building programmes will be premised on specific principles including the principle of transparency and the principle that the level of development of each country has to be taken into account in implementing IP; there will be enhanced transparency through the publication of general technical assistance and capacity building programme information on the WIPO website in an accessible form, the provision of detailed information to Member States, on request and disclosure of information on technical assistance consultants coupled with stricter adherence and enforcement of the Code of Conduct; in the overall WIPO technical and capacity programme special attention will be paid to activities in Africa; in addition to the other issues that are addressed in the assistance and capacity building programmes, WIPO in its assistance programmes will also have to address issues of development-oriented IP education in academic institutions, the special needs of small and medium enterprises (SMEs), the interface between IP and competition, access to private patent databases by developing country IP offices, improvement of efficiency in IP offices in developing countries and ensuring that these offices promote balanced IP regimes, and flexibilities in the TRIPS Agreement; and through the creation of a database, specific efforts will be directed at matching IP-related development needs with available resources in and outside of WIPO.

What does this mean in practical terms?

While the implementation framework for all the 45 proposals is still being developed and some might argue that these recommendations do not mean much (the WIPO Secretariat could even argue that they have been doing all these), the reform introduced by the WIPO development agenda in this area of WIPO programming will mean at least three new things.

To start with, for the first time in WIPO’s history there will be an agreed general framework to guide the design, delivery and evaluation of activities in this area. A clear framework, established by Member States, will provide an important platform against which recipient countries, donor countries, academic researchers, critics, the media, civil society, industry and other stakeholders will critique and evaluate WIPO’s activities. Secondly, better transparency will inevitably lead to better accountability by the WIPO Secretariat to Member States in terms of efficiency in resource allocation and utilisation as well as impacts. Finally, this framework can help recipient countries better structure their requests to WIPO and in the long run will help increase the ownership and power of recipient countries vis-à-vis the WIPO Secretariat and other stakeholders in the design, delivery and evaluation phases of the programmes.

A new development-based framework for initiating, conducting and evaluating treaty-making and other norm-setting activities

The components of this new framework include: Mandatory Member-driven, open and balanced pre-negotiations consultations on proposed treaties or other norm-setting activities; a set of principles aimed at ensuring balanced, transparent and development-sensitive negotiation process and eventual treaties. The principles, among others include the principles that treaty-making will be Member-driven (avoiding Casablanca type conclaves), take into account the levels of development of different WIPO Members and the flexibilities contained in international IP agreements, especially flexibilities relevant to developing countries, and consider the costs and benefits of proposed treaties. The other components of the framework are continuing analysis of the implications of proposed treaties on the public domain, especially the need to ensure a rich and accessible public domain. Consideration would also be given to developing guidelines on the issue; dedicated focus on pro-competitive IP licensing practices; consideration in WIPO working documents related to proposed treaties of issues such as policy space in national implementation of IP rules, interface between IP and competition, transfer of technology, flexibilities, exceptions and limitations and special provisions for developing countries and LDCs.

The practical implications of this new framework for treaty-making and other norm-setting activities are manifold. For example, the mandatory pre-negotiation procedures will mean that there will be opportunity for more robust debate to clarify objectives, scope and content of proposed treaties than before. While this might mean that it will take longer before treaty formulation can begin, it will reduce incidences of complete breakdown such as in the recent cases of the proposed substantive patent law treaty (SPLT) and the broadcasting treaty after many years of discussions. On the other hand, the set of principles are likely to play an important role in increasing transparency of WIPO treaty-making as well as general accountability leading to the strengthening of WIPO and improvement in its legitimacy. This is a benefit for all WIPO Member States and other stakeholders.

Consideration of access to knowledge (A2K) and technology issues

The development agenda adopted at the Fourth Session of the PCDA will usher in a new Era for WIPO in terms of the scope of its issue coverage. Moving away from the earlier view that WIPO’s mandate was limited to simply promoting IP, the recommendations foresee dedicated discussions on access to knowledge and technology. It is also foreseen that WIPO Member States will exchange experiences on open collaborative projects such as the human genome project. These discussions and exchange of experiences have the potential to lead to new instruments or norms on issues of access to knowledge and technology to the benefit of developing countries, LDCs and the public, North and South. In other words, the WIPO development agenda has established a formal platform for the A2K movement to take forward a range of ideas from the proposed A2K treaty to discussions on alternative incentives and models for innovation. Coupled with the recommendations on the public domain, this recommendations mark a major shift in the philosophy and ideology of WIPO.

Technology Transfer

The development agenda includes a raft of recommendations on technology transfer, an issue hitherto viewed with disdain in WIPO. Among others, WIPO will now have to specifically: explore IP-related policies and initiatives necessary to promote transfer of technology and supportive measures that developed countries can take to promote transfer of technology from their territories; have specific discussions that could even lead to new instruments on transfer of technology in an appropriate body; undertake initiatives, subject to the agreement of Member States, that contribute to transfer of technology, for example, improving access to patent information.

The implications of the recommendations on transfer of technology is likely to include a necessary change of attitude by WIPO towards transfer of technology issues and an acknowledgement of the a key component of the organisations constitutional mandate. The dedicated work programme, if properly implemented, could help WIPO live-up to its responsibility in the UN system for facilitating transfer of technology to developing countries for socio-economic and cultural development.

A new evaluation and impact assessment framework for WIPO

Pursuant to the recommendations of the PCDA, a new evaluation and impact assessment will be introduced in WIPO for the first time in the organisations history. Under this framework, WIPO will be expected to develop an annual review and evaluation mechanism to assess the development-orientation of all its programmes and activities, including technical assistance and capacity building activities. The review and evaluation mechanism will contain specific benchmarks and indicators, as applicable. To undertake this work, WIPO’s capacity to perform objective assessments of the impact of the organization’s activities on development is to be strengthened.

This is a quantum-leap for WIPO. Though it is too early, to anticipate the real implications here since the mechanism is yet to be developed, there is no doubt that the establishment of annual evaluation and impact assessment mechanism heralds a new era for WIPO. In addition to all the other reforms envisaged under the development agenda, the evaluation mechanism is also likely to induce further reforms over time.

In addition to the annual review and evaluation mechanism across WIPO activities, a special review of all current WIPO technical assistance activities is to be undertaken in addition to, upon request by Member States, studies to assess the economic, social and cultural impact of IP systems in these countries as well as on the links and impact of IP on development. A study on the impact of IP in the informal economy is also to be undertaken.

Other Issues

There are a number of other issues which will also be addressed in the WIPO development agenda. These include: balanced approach to enforcement of IP in line with article 7 of the TRIPS Agreement; procedures for WIPO meetings outside Geneva; continued efforts to ensure wide participation of civil society organisations in WIPO activities; intensifying cooperation with other UN agencies such as UNCTAD, WHO, UNIDO, UNESCO; improving methods for finding partners to fund and execute projects; undertaking studies, appropriate on brain drain in Africa; addressing IP-related aspects of information and communication technologies (ICTs) including relevant issues relating to the digital divide; and enhanced exchanges and cooperation between research and scientific institutions in developed and developing countries.

Success or hot air?

An implementation machinery for the development agenda was also agreed at the Fourth session of the PCDA. This machinery is a Committee on Development and IP. The Committee will develop a detailed work programme for the implementation of the development agenda, monitor, assess, discuss and report, in coordination with other WIPO bodies, the implementation of the various recommendations constituting a development agenda for WIPO and discuss other relevant IP and development issues identified by the committees or decided by the General Assembly of WIPO. The Committee, whose first session is proposed for the first half of 2008, will report to the General Assembly annually.

The outcomes of the development agenda were received with jubilation across the political and economic spectrum among WIPO Member States and other stakeholders. An unnamed government official quoted by Intellectual Property (IP) Watch speaking of the outcome said, “This is a major achievement. It’s a complete overhaul of the WIPO concept, broadening it to reflect society’s growing concern with ownership of technologies and knowledge, and its effects for the future, both in developed and developing countries.” The Director General of WIPO, Kamil Idris, who is known not to have been amused by the initial proposal in 2004 said in a WIPO press release on 18 June 2007 that the outcome was “an important contribution to international efforts to promote the development of a balanced intellectual property system that is responsive to the needs and interests of all countries – developed and developing alike,”. Others who commented on the outcome like James Love argued that the outcomes meant that “WIPO is no longer only to pursue mindless expansions of intellectual property rights, but now is a place to discuss a broad range of topics, including measures to protect or promote access to knowledge, the implications and benefits of a rich and accessible public domain, and strategies for dealing with abuses of rights, or other measures to protect the public interest.”

The results are clearly beyond the dreams of the initiators of the discussions and pretty much everyone else who witnessed the atmosphere, the discussions and other antics in WIPO in 2004.

From the very beginning of this process, however, sceptics have argued that the proposal for the establishment of a development agenda amounted to nothing more than hot air, ideology and empty rhetoric. So far the sceptics have been proven wrong. The range of reforms and new frameworks envisaged under the now established development agenda are anything but hot air, ideology and empty rhetoric. Although like everything else implementation might entail significant challenges and failure could visit the agenda, as the dust settles, it is becoming clear that the development agenda for WIPO has the potential to significantly transform the organisation in major ways resulting in not only improvements in the attention paid to development issues and the composition of its staff but also to deliver the organisation into the 21st Century. For this reason, the development agenda is already a success. The challenge that remains is to build on this success and ensure that the opportunity is not squandered in implementation. A lot of work remains to make the agenda a reality on the ground. Sustained interest and vigilance by both governments and non-governmental actors, especially civil society, continued political commitment and critique will be crucial going forward.

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