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Report on Day 1 & 2 of the Forty-third Assemblies of the Member States of WIPO

By John S. Gardner
September 25, 2007

John S. Gardner, a Senior Director of the White House Writers Group in Washington, D.C., and former General Counsel of USAID, is representing the Federalist Society this week at the Forty-third Assemblies of the Member States of the World Intellectual Property Organization, which is meeting from September 24 to October 3 in Geneva. The meetings are expected to be dominated by the proposed adoption of the "Development Agenda" of WIPO , a proposal from the US and Japan to reduce fees paid by WIPO customers under the Patent Cooperation Treaty, and continuing controversy over the tenure of WIPO Director General Idris (for a summary of this, please see Claudia Rosett's article on National Review Online from September 23). For further background on WIPO's development agenda, please click here. Please note that any quotations here are based on notes from the simultaneous translations provided by WIPO and do not represent a particular nation's official text except where indicated.

Forty-third Assemblies of the Member States of WIPO
September 24 - October 3, 2007

The newly-elected Chairman, Ambassador Martin I. Uhomoibhi, Permanent Representative of Nigeria to the United Nations in Geneva, began the day's session at 11:00 by expressing the hope that delegates had had a good night's rest, even though "some of us did not," given the continuing informal consultations after the inability to agree on an agenda on Day 1 of the Forty-Third Assemblies of Member States of WIPO. However, a compromise was reached this morning under the leadership of the US, Italy, and Algeria representing the African Group. Two issues in particular had blocked agreement on an agenda: the proposal by the US and Japan for a reduction of fees under the Patent Cooperation Treaty given the current surplus of funds, and the question of examining audit reports of the organization. On the first, Item 8 of the agenda now will cover first the proposal of the US and Japan, second a resolution to be proposed by Brazil, and third any other resolutions on this item that may be made. On the second issue, Item 12 of the agenda will now include a discussion of "reports issued since the last General Assembly." This will lead to a discussion of the status of Director General Kamil Idris, who has now submitted a response to various accusations made against him. These reports will be discussed by a group of "Friends of the Chair," which will then report before the end of the Assemblies on October 3. Switzerland and the UK asked that the group report by the end of this week because many heads of delegations will plan to leave Geneva by the weekend. In response, Brazil stated that reporting by the end of the Assemblies, as provided for in the agreement reached this morning, was sufficient and that if delegations left early, that should be taken as a sign that the issue is not that important to them.

Following unanimous adoption of the new agenda, general debate commenced, with the first interventions on behalf of regional groups. Most delegations, especially from the developing world, strongly supported the WIPO Development Agenda which will be discussed, and in all likelihood adopted, later this week. There was a consistent theme that intellectual property should be used for development and that intellectual property protections should be consistent with a country's level of development. For instance, Algeria, representing the African Group, declared that WIPO should support the broad agenda it has and facilitate the transfer of technology to developing countries. Brazil noted that WIPO was "about to take a historic decision" with the adoption of the development agenda and that the budget of WIPO for the next two years should reflect that fact. China, along with other countries, stated that a goal of WIPO should be to "make IP protection levels suitable to the requirements of developing countries" (rather than having consistently high protection for IP); only this could help development. China added that discussions of IP rights should "start from the development level of each country so that the costs of IP do not exceed the benefits."

Similarly, Singapore, speaking for the ASEAN Group, stated that "protection of IP is not an end in itself, but a means to promote the public interest" -- a broad statement reflecting weaker protections for IPR. Singapore also spoke of the need to "take account of different levels of national development" in determining IP protection. South Africa noted a "broader concern for developing countries . . . to derive tangible benefits from rigid IPR regimes." Instead, IP protections should "reflect the concerns of all stakeholders, especially those of developing countries."

A second developing country concern was the desire to extend the mandate of the Intergovernmental Committee (IGC) discussing the subject of Genetic Resources, Traditional Knowledge, and Folklore. Most, if not all, developing countries want to see its work translated into a binding international instrument or treaty. South Africa termed this an issue of "strategic significance for the developing countries."

There was much discussion of the "spirit of WIPO" (Algeria) and "the principles underlying IP protection" (Singapore), rather than direct statements of the value of IPR themselves. Even Hong Kong, China stated that there was a "need to balance protection of pharmaceuticals with the needs of developing countries."

In contrast, Italy, representing Group B, spoke of the "paramount importance of IP . . . to ensure economic and social development" and noted only its "great interest" in the proposals for the development agenda. On the question of the renewal of the IGC mandate, while not opposing it directly, Italy noted the need for a "deeper analysis of best practices" at a national level to assist in moving the work forward. Italy also asked for the same spirit of cooperation that was seen in the development agenda work to be shown in the Special Committee on Patent's work on patent harmonization. Portugal, representing the European Union, also supported this point.

The US intervention was brief and to the point. The US stated the classic position that IP is "a tool for economic development . . . expanding the fruits of prosperity. But the US agreed that it is important to implement the WIPO development agenda proposals. Its view that WIPO is the "specialized agency uniquely competent" to address all aspects of IP may reflect a concern that other UN agencies are moving too far into WIPO's traditional area of competence. Japan similarly noted that as a country that had "achieved development through the IP system" rather than outside that system, it could assist other countries to do the same, both through direct assistance to developing countries and by working to translate the development agenda's recommendations "into action in an appropriate manner."

Debate on Item 4 continued this afternoon and will continue in an evening session to be held after the breaking of the Ramadan fast. One notable intervention was that of Ethiopia, which called attention to its recent agreement on using trademarks to protect its specialty coffees, leading to long-term licensing agreements. This is a strong example of the use of traditional IPR mechanisms to protect the interests and unique resources of a developing country. For its part, Bahrain noted that its Free Trade Agreement with the United States specifically included protection for intellectual property, a welcome contrast to the criticisms some developing countries have made about FTAs not respecting the rights of countries under the TRIPS Agreement of the World Trade Organization.

On the whole, there seems little question that, as Brazil noted, WIPO is entering a "new stage." The question will be how much of the original mandate of WIPO -- protection of intellectual property rights -- will be subordinated to the development agenda, which calls for a weighing of the "costs" of intellectual property protection along with its benefits. The development agenda will doubtless influence many different aspects of WIPO's work in the future. For instance, Brazil today stated that WIPO's committee on copyright "should deal with new issues that take into account the principles of the development agenda" -- a declaration that the development agenda has broad reach. As Pakistan noted, "WIPO has made consistent efforts to put development at the center of all issues" with which the organization deals. Thailand, so prominent in recent years in the debate over IP protections applicable to the pharmaceutical industry, stated that, in its view, the "ultimate goal" of the WIPO development agenda is "to find a delicate balance between public policy objectives [such as public health] and the promotion of innovation." From this perspective, today's interventions, while generally predictable, did little to offer optimism to those who favor high protections of intellectual property rights as the core mandate of WIPO.