Report on Day 1 of the WIPO Development Agenda Meetings

June 11, 2007

Mark F. Schultz

The World Intellectual Property Organization (WIPO) is an international organization dedicated to promoting the use and protection of works of the human mind. These works -- intellectual property -- are expanding the bounds of science and technology and enriching the world of the arts. Through its work, WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations. With headquarters in Geneva, Switzerland, WIPO is one of the 16 specialized agencies of the United Nations system of organizations. It administers 23 international treaties dealing with different aspects of intellectual property protection. The Organization counts 183 nations as member states.

Professor Mark Schultz from Southern Illinois University School of Law will be attending meetings on intellectual property and the developing world at WIPO in Geneva this week, June 11 - 15, 2007, on behalf of the Federalist Society for Law and Public Policy Studies. This first report below provides a bit of context and preview of the issues being considered this week.

Please click here for the agenda of the meetings.

Context

The benefit of intellectual property protection for developing countries is among the most controversial issues in international politics today. Not so long ago, the view was considerably different. Most accepted the benefits of intellectual property protection for innovators, creators, and the public who enjoyed the benefits of their work.

Now, a wide-ranging ideological assault portrays intellectual property as the source of many of the problems of the developing world. Calls for compulsory licensing of patented drugs have increased as activists urge other developing nations to follow the lead of the Thai military junta, which recently instituted compulsory licensing for several drugs. Last month, the World Health Organization adopted a proposal that could jettison patents as the primary driver of global health R&D. Last week, the G8 summit's call for enforcement of intellectual property laws was met with derision. For more background on this ideological debate, see a piece previously written by me and my co-author David Walker and published by the Federalist Society.

One of the key locations in this controversy has been WIPO. Since 2004, much of WIPO's attention has been consumed by the "Development Agenda." The Development Agenda was proposed by a coalition of WIPO member states led by Brazil and Argentina. This week's meeting is currently slated to be the final meeting on the Development Agenda, and it is supposed to produce a report setting forth recommendations for the WIPO General Assembly meeting this September.

Development Agenda proponents, who bill themselves as the "Friends of Development" ("FOD Group"), contend that intellectual property rights interfere with development by restricting free access to medicines, educational materials, and other materials essential to human development. While they concede that some intellectual property protection is needed, they believe that the current intellectual property system is too restrictive. They propose that there should be a presumption against increased international IP protection which could be overcome only when higher standards are "clearly necessary . . . and where the benefits outweigh the costs of protection."

Other member states strongly disagree with the asserted need to change WIPO's mandate, contending that protecting the intellectual property rights of the people of developing nations is essential to development. These countries, including the United States and Japan, thus view WIPO's current mandate as already consistent with promoting development. In their view, many nations have yet to effectively protect their citizens' intellectual property rights since agreeing to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) 10 years ago.

Last summer, the Development Agenda process broke down when the parties were unable to reach agreement on the large number of proposals that had been offered. Of 111 proposals then pending, there was consensus as to 40 proposals. Those proposals largely addressed technical assistance to developing nations to assist with building their intellectual property institutions; training judges how to adjudicate intellectual property cases; and helping governments build their intellectual property administrative capabilities. The Friends of Development were unwilling to move forward with just 40 proposals, and the process ended without a resolution.

In September, 2006, the WIPO General Assembly continued the Development Agenda process for another year. It set two meetings for 2007: The first, in February, addressed the 40 proposals on which there was already consensus. The other 71 more controversial proposals were deferred until this June meeting.

This past February, the parties were able to reach agreement on the 40 non-controversial proposals. A number of reports trumpeted this "new-found spirit of cooperation," lauding the U.S. and other developed nations for retreating from their "hard-line" stance. This spin on February's events is a bit odd, as the 40 proposals were the ones on which the parties had already reached a consensus eight months earlier.

The hard work is set for this week as the parties address the more controversial remaining proposals, many of which would fundamentally change the mandate of WIPO.

Monday June 11th

Monday, June 11th was the first day of the latest round of meetings at the World Intellectual Property Organization (WIPO) regarding the "Development Agenda."

The parties have come a long way toward resolving differences on the controversial proposals to be discussed this week. Since the last meeting in February, the parties had engaged in a number of informal consultations aimed to move the process along. Most important, the Friends of Development have retreated somewhat from their previous all-or-nothing position. They recently produced a proposed compromise that boils down the remaining 71 proposals down to 21 proposals. This compromise (not publicly circulated) retreats from several of the most controversial positions and reduces some duplication.

Still, some very controversial proposals remain. Several of the proposals are outside of the mandate set forth in the WIPO convention "to promote the protection of intellectual property throughout the world through cooperation among States." Development Agenda proponents would instead have WIPO promote exceptions and alternatives to intellectual property. Among the remaining Friends' proposals:

  • To have WIPO "give practical advice to developing and least developed countries" regarding compulsory licensing "to enable them to gain access to essential medicines and food."
  • To initiate discussions on an "access to knowledge" treaty that would provide for sweeping exceptions to current copyright and patent treaties.
  • To draw up proposals for the preservation and identification of, and access to the contents of the public domain.
  • Consideration of open source projects and other alternatives to intellectual property.

The Friends also want to extend the Development Agenda process for two more years, as it is slated to end this September (and has already been extended twice already).

The current chair of the meeting, Ambassador C. Trevor Clark of Barbados, has been praised by all for finding a way to streamline a previously inefficient and frustrating process. The parties will spend much of the week meeting in regional groups, trying to draft compromise language. Regional coordinators will negotiate on behalf of their regional blocs. This process promises to yield at least some consensus proposals.

Today, the parties were given the opportunity to make brief opening statements. Most of the statements were very general and preliminary, with a few notable exceptions.

First, Algeria as the new regional coordinator for the African Group, made a rather surprising statement. In his long statement, the Algerian delegate described the current intellectual property regimes as promoting a "mercantile economy." He further contended that intellectual property had "worsened" the problems of least developed and developing countries. He also looked forward to a conclusion that would "free" the parties from the "rigors of market laws" by allowing them to circumvent intellectual property protections.

This sort of statement on behalf of the African Group was surprising at this stage of the proceedings. Throughout this process, many members of the African Group earnestly sought badly-needed technical assistance in building their innovative capacities. They won this technical assistance in the February meeting, and it was widely thought that they would want to see the process conclude successfully to ensure this assistance was available. Today's statement contradicted this impression. It appears that the position of the African Group has changed with the departure of the temperate and thoughtful leadership of the respected former coordinator of the African Group, Usman Sarki of Nigeria.

The United States was also notable in its strong, clear position regarding a conclusion to the Development Agenda process. The U.S. praised the Development Agenda for revealing how the current framework of WIPO can and does promote development. It contended that robust intellectual property protection accomplishes many of the goals stated by other delegations, such as facilitating technology transfer and ultimately enriching the public domain. The U.S. concluded that weakening intellectual property protection would not help development, as WIPO's greatest contribution to development is intellectual property protection. The U.S. thus opposed taking up matters that were not mandated by the WIPO convention, particularly alternates to intellectual property protection.

Further controversy will likely develop as proposals emerge from the regional group meetings. I will continue to report from Geneva.