Report on Day 4 of the WIPO Development Agenda Meetings

June 14, 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 reports on the fourth day (June 14th) of the Development Agenda meetings at the World Intellectual Property Organization (WIPO) being held this week in Geneva.Please click here for the agenda of the meetings.

Please click here for the agenda of the meetings.

Results of Negotiations on Access to Knowledge

Today at WIPO, intense, closed negotiations regarding the latest proposals regarding the Development Agenda continued. The chairman of the meeting, Ambassador Trevor Clark, continues to drive the meeting forward behind closed doors. The only plenary meeting scheduled for the day was cancelled and no new documents were released. However, an unofficial copy of what is apparently the final version of “Cluster B,” which involves norm-setting, was available from many sources.

Negotiators have now accepted inclusion of the concept of Access to Knowledge in the final draft. Yesterday, several Group B delegations (the developed countries) resisted this inclusion as much as they could. They finally compromised, after eliminating a large number of otherwise troubling provisions. However, they won a key concession from those delegations skeptical of intellectual property protection: Any access to knowledge activities must be within WIPO’s existing mandate.

The relevant paragraph now reads as follows:

“To initiate discussions on how, within WIPO’s mandate, to further facilitate access to knowledge and technology for developing countries and LDCs to foster creativity and innovation and to strengthen such existing activities within WIPO.”

According to several members of various Group B delegations, the key limitations of this latest language are that access to knowledge will be facilitated “within WIPO’s mandate” and it will be “further” facilitated, thus recognizing that WIPO’s activities already foster access to knowledge.

Limiting Implementation to Actions within WIPO’s Mandate

The limitation that facilitation of access to knowledge must be within WIPO’s mandate is significant. As the Development Agenda proposals are implemented over the months and years to follow, there will be many battles regarding how broadly WIPO’s mandate should be read. Some contend that WIPO’s mandate allows it to address anything related to intellectual property law—even exceptions to intellectual property.

WIPO’s mandate, however, clearly takes a positive stance with respect to intellectual property. The WIPO Convention (in Article 3) states that WIPO’s purpose is “to promote the protection of intellectual property throughout the world through cooperation among States.” To accomplish that purpose, WIPO may, among other things (Article 4):

  • “promote the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonize national legislation in this field;”
  • “encourage the conclusion of international agreements designed to promote the protection of intellectual property;” and
  • “offer its cooperation to States requesting legal–technical assistance in the field of intellectual property”

I spoke with academic colleagues who contend that the “efficient protection of intellectual property” and harmonization provisions are broad enough to allow WIPO to promote exceptions and alternatives to intellectual property. I find this a dubiously broad reading of the mandate. Nevertheless, expect to hear this argument as the Development Agenda is implemented.

Most longtime observers believe that WIPO’s mandate does not allow promotion of exceptions and alternatives to intellectual property. Indeed, at the start of the development process, the Friends of Development and their allies complained that WIPO’s mandate was too one-sided, too favorable toward intellectual property.

If WIPO’s mandate is thus read as the Friends and their allies originally interpreted it, then the many provisions restricting Development Agenda activities to WIPO’s existing mandate negotiated this week represent a set-back for the Friends and a vindication of intellectual property rights.

WIPO’s mandate has not been changed by the Development Agenda. WIPO’s purpose remains the promotion of intellectual property. Promotion of intellectual property does indeed promote development. That principle should be kept in mind throughout implementation of the Development Agenda.

Implementing the Development Agenda: What is A2K?

The limitation of the Development Agenda to actions within WIPO’s existing mandate is very important. Nothing demonstrates this need more than the potential consequences of unrestrained implementation of the “access to knowledge” principle.

Activists have issued statements that they will immediately move to seek implementation of their longstanding proposals regarding Access to Knowledge at WIPO.

Many of the policies that fall under the rubric of Access to Knowledge, as that concept has been proposed by activists, do not fall within WIPO’s existing mandate.

As I discussed in my report yesterday, there was a reason some parties wanted the words “access to knowledge” to appear in the final Development Agenda proposals. Access to Knowledge (or “A2K”) is, by now, a “brand name” concept, having moved beyond its dictionary definition to embody a specific set of policies that would limit intellectual property rights. “Access to Knowledge” is the name of a treaty proposed by activists two years ago. This treaty has spawned the A2K movement.

A2K’s guiding document is the A2K Treaty. The proposed treaty is located here http://www.cptech.org/a2k/a2k_treaty_may9.pdf (although the movement has progressed beyond this founding document). It reads like a wish list of IP skeptic proposals.

Based on the A2K treaty, those whose interests would be significantly affected by implementation of an A2K norm unrestrained by WIPO’s current mandate include the following: pharmaceutical companies; software and technology companies; authors and publishers; musicians and recording companies; inventors; researchers and research institutions who accept any public funding; and even those interested in immigration policy.

Significant A2K proposals that likely would fall outside WIPO’s mandate include the following A2K treaty proposals:

  • No restrictions on libraries granting access to or lending a work once they pay for it (Section 3-4);
  • Strict restrictions on the use digital rights management, including a privilege to circumvent all DRM (Section 3-6) (apparently without regard to law or contract) for the following types of works:
    • Scientific and medical works
    • Works where any significant public financing was accepted
    • Factual information available from a single source if that information is not readily available elsewhere (i.e., no copy protection for unique or first-to-market databases)
    • Works protected by terms longer than those required by TRIPS
  • No database protection laws (Section 3-7)
  • All members would be required to have copyright orphan works legislation that conforms to the treaty (Section 3-8)
  • Streamlined compulsory licensing of copyrighted works (Section 3-12)
  • Patent provisions (Section 4)
    • No design patents
    • No software patents
    • No exercise of patent rights to prohibit the use of improvements that improve upon the patented invention
    • Disclosure of use of any biological material used in creating an invention and benefit sharing with whatever country from which that biological material came (e.g., Edison would have been required to disclose and compensate Japan for his use of filaments in his light bulb made of carbonized bamboo harvested near Kyoto)
  • Compulsory licensing of interfaces for knowledge goods deemed “essential” by a committee operating under the A2K convention (6-4)
  • Access to software deemed “essential” by a committee operating under the A2K convention (7-3)
  • Release of software code after a certain time (7-3)
  • Protection of authors and performers from signing “unfair” agreements with publishers (8-2)
  • All intellectual property derived from public support (including tax credits) must be licensed to all member nations at the most favorable price offered by the owner (Section 10-2)
  • Elimination of all visa requirements for foreign university students or visiting scientists and engineers (10-1)

This wish list would never all pass into treaty form. However, it does show what the concept of Access to Knowledge potentially embodies if not limited to WIPO’s existing mandate.

Those interested in WIPO’s activities thus will need to monitor implementation of the Development Agenda quite carefully. The Development Agenda can do much good if implemented within WIPO’s existing mandate.

Conversely, if implementation is allowed to exceed WIPO’s current mandate, then the Development Agenda may ultimately have breathtaking, revolutionary implications.

Implementation will now make all the difference.

It looks like the parties are driving toward their goal of producing a final report tomorrow. I look forward to reporting the final results.

I am happy to receive questions or comments at mschultz@siu.edu .