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Report on Day 5 of the WIPO Development Agenda Meetings

By Mark F. Schultz
June 15, 2007

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 fifth day (June 15th) 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.

 

Summary of Results of Negotiations

Today at WIPO, the parties reached the end of a three year process to draft a development agenda for WIPO. To summarize the results briefly:

  • The Provisional Committee on the Development Agenda (PCDA) has finished its work.
  • The parties have reached agreement on six clusters of proposals addressing development-related activities at WIPO.
  • The PCDA recommends that WIPO implement these proposals, as well as the ones to which the committee agreed in February.
  • The PCDA recommends that WIPO establish a Committee on Development and IP to implement the proposals.

The specific mandate of the Committee on Development and IP will be to:

“a. develop a work-program for implementation of the adopted recommendations;

b. monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose it shall coordinate with relevant WIPO bodies;

c. discuss IP and development related issues as agreed by the Committee, as well as those decided by the General Assembly.”

Reactions and Analysis

Discussions with various delegates and activists indicated that the final agreement was a true compromise, as no party was entirely happy. The proponents of the original Development Agenda did not achieve everything they wanted. Those who were skeptical of the original Development Agenda did not receive everything they wanted.

Most significantly, the final result did not produce a change in WIPO’s mandate. The original proposal was extremely skeptical of intellectual property, seeing it as an obstacle to development and seeking a new presumption against new intellectual property rights. The final report, by contrast, recognizes that intellectual property promotes development. All proposals must be implemented within WIPO’s existing mandate. There will be no presumption against intellectual property—rather, IP remains recognized as a positive good.

On the other hand, some proposals may generate significant change at WIPO. WIPO is more dedicated than ever to providing technical assistance to developing countries in implementing their intellectual property systems. Development-oriented considerations are required to be applied to many WIPO activities. Moreover, the parties agreed to “further facilitate access to knowledge,” which is viewed by some as an embrace of the Access to Knowledge movement—although this provision is conditioned by the requirement that such activities be within WIPO’s mandate (which, as I have previously noted, is to promote intellectual property protection).

In the end, the true effect of the PCDA process will depend on how it is implemented (assuming the General Assembly adopts the PCDA’s recommendations, which all view as likely). Future battles will move to the new Committee on Development and IP. Many believe that some NGOs and proponents of the original Development Agenda will press to expand the committee’s work beyond the final report of the PCDA. Conversely, some fear that the proposals could be neglected through inadequate implementation.

All parties interested in WIPO and the world intellectual property system will thus have an interest in continuing to monitor the work of the new Committee on Development and IP.

Appendix: Final Proposals

Cluster A:

“1. To assist Member States to develop and improve national IP institutional capacity through further development of infrastructure and other facilities with a view to making national IP institutions more efficient and promote fair balance between IP protection and the public interest. This technical assistance should be also be extended to sub-regional and regional organizations dealing with IP.

2. To assist Member States to strengthen national capacity for protection of domestic creations, innovations and inventions and to support development of national scientific and technology infrastructure, where appropriate, in accordance with WIPO’s mandate.

3. To further mainstream development considerations into WIPO’s substantive and technical assistance activities and debates, in accordance with its mandate.

4. WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs, as well as the different levels of development of Member States and activities should include time frames for completion.

5. Within the framework of the Agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs on the implementation and operation of the rights and obligations and the understanding and use of the flexibilities contained in the TRIPS Agreement.”

Cluster B:

“1. In its activities, including norm-setting, WIPO should take into account the flexibilities in international IP agreements, especially those which are of interest to developing countries and LDCs.

2. To urge the IGC to accelerate the process on the protection of genetic resources, traditional knowledge and folklore, without prejudice to any outcome, including the possible development of an international instrument or instruments.

3. 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.

4. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.

5. WIPO shall conduct informal, open and balanced consultations, as appropriate, prior to any new norm-setting activities, through a member-driven process, promoting the participation of experts from Member States, particularly developing countries and LDCs.

6. WIPO’s norm-setting activities should be supportive of the development goals agreed within the UN system, including those contained in the Millennium Declaration.

The WIPO Secretariat, without prejudice to the outcome of Member States considerations, should address in its working documents for norm-setting activities, as appropriate and as directed by Member States, issues such as: a) safeguarding national implementation of intellectual property rules b) links between IP and competition c) IP-related transfer of technology d) potential flexibilities, exceptions and limitations for Member States and e) the possibility of additional special provisions for developing countries and LDCs.

7. To consider how to better promote pro-competitive IP licensing practices, particularly with a view to fostering creativity, innovation and the transfer and dissemination of technology to interested countries, in particular developing countries and LDCs.”

Cluster C:

“To include discussions on IP-related technology transfer issues within the mandate of an appropriate WIPO body,”

“WIPO should cooperate with other intergovernmental organisations to provide to developing countries, including LDCs [least developed countries], upon request, advice on how to gain access to and make use of IP-related information on technology, particularly in areas of special interest to the requesting parties,”

“To undertake initiatives agreed by member states which contribute to transfer of technology to developing countries, such as requesting WIPO to facilitate better access to publicly available patent information,” and

“To have within WIPO opportunity for exchange of national and regional experiences and information on the links between IP rights and competition policies.”

Cluster D:

“1. To exchange experiences on open collaborative projects such as the Human Genome Project as well as on IP models.”

“2. Upon request and as directed by Member States, WIPO may conduct studies on the protection of intellectual property, to identify the possible links and impacts between IP and development.”

“3. To strengthen WIPO’s capacity to perform objective assessments of the impact of the organization’s activities on development.”

Cluster E:

“To consider how to improve WIPO’s role in finding partners to fund and execute projects for IP-related assistance in a transparent and member-driven process and without prejudice to ongoing WIPO activities,”

“In accordance with WIPO’s member-driven nature as a United Nations Specialised Agency, formal and informal meetings or consultations relating to norm-setting activities in WIPO, organized by the International Bureau, upon request of member states, should be held primarily in Geneva, in a manner open and transparent to all members. Where such meetings are to take place outside of Geneva, member states shall be informed through official channels, well in advance, and consulted on the draft agenda and program.”

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