I am setting out here some of the arguments for a paper I am currently working on titled "The Development Agenda at WIPO: Where is Canada?" I would appreciate any comments.
I argue that many of the developing countries’ most potent WIPO development agenda proposals have been diluted, and that almost none of the proposals for changes to treaties or new treaties have survived at all. For the most part, (also see some of my preliminary thoughts in past posts here and here) only mild-mannered proposals about the way WIPO provides assistance to developing countries in implementing intellectual property treaties have gone forward. (On this I differ from the much more positive comments of IP-Watch.) I will argue that, while an alarming number of the most challenging demands of developing countries have been dropped (including anything suggestive of new treaties or major changes to existing treaties), the proposals that remain are important and do have the potential to benefit developing countries by encouraging the implementation of intellectual property norms in a more balanced way. The proposals going forward from the development agenda discussions, unlike the provisions carved out of the Doha round or the 1971 Berne protocol, have primarily to do with advice and assistance provided by WIPO to developing countries in the implementation of their international intellectual property obligations. Such advice and assistance appears to be very much needed. Indeed, it may have been very wise indeed for WIPO member countries to focus on assistance and implementation, rather than on adding to a list of provisions carved out for developing countries that are rarely put into practice.
The WIPO Development Agenda: Canada's Role
I will argue that, in the initial phases of the development agenda discussions, Canada’s allegiance to the group of industrialized nations had loosened somewhat, and that Canada took the position of a middle power, forming a bridge between developed and developing countries. I will then argue that, in the less polarized debates that have followed, Canada, like many developed countries, has encouraged the discussions along, allowing many of the less challenging proposals to pass, but blocking more radical proposals. In particular, as has been noted, Canada appears to have sided at one point with the United States over the contentious issue of ‘access to knowledge’.
Developed countries as a whole have blocked numerous proposals, such as those that called for major institutional changes at WIPO, proposals that emphasized too strongly the potential negative effects of intellectual property protection, proposals that promoted the need for flexibility from intellectual property rules, proposals that fell too far outside WIPO’s focus on intellectual property, and proposals that called for new intellectual property treaties. On less contentious proposals, however, developed countries have followed Canada’s lead to middle ground and have accepted of many of the development agenda proposals.
Canada's Positions: Why?
Canada’s positions can be viewed, first, as part of an international political/economic strategy; second, as part of a domestic strategy that caters to Canadian interest groups; third, as a function of traditional party politics; and finally, as a function of Canadian interests in a well-functioning intellectual property system.
- Canada’s sympathy with developing countries, and that of other Group B countries, can be explained by noting that Canada, as a net intellectual property importer, has little to gain directly from increased intellectual property protection; it is American intellectual property owners who stand to gain the most from such policies.
- From the perspective of domestic politics, Canada’s middle position throughout much of the development agenda talks might have been catering somewhat to the international development community in Canada, who are likely quite interested in the progress of the negotiations, and to other stakeholders sympathetic with many of the developing country positions. Such groups have, over the years, grown more active not only on the domestic stage, but also at WIPO and other international fora. At the same time, the Canadian delegation would have had to keep in mind the very powerful industry groups with interests in strong intellectual property protection who are also quite vocal in Canadian political media
- Traditional party politics may have played a role in the positions taken by the Canadian delegation. Throughout the first phases of the development agenda, in 2004-2005, the centre-left Liberal Party of Canada was in power. The right-of-centre Conservative Party came to power in Canada in February 2006, just as the second less polarized phase of the development agenda discussions began. The Liberal government can therefore take credit for most of the actions taken by the Canadian delegations to create a middle ground between Group B and developing countries, while the Conservative government is ultimately responsible for Canada’s encouragement of many of the developing country proposals, as well as Canada’s initial stance against ‘access to knowledge’.
- While it is difficult to pin particular intellectual property policies, which do not have strong left-right political associations, to traditional political party politics, it is possible to see the stances taken by the Canadian delegation as an extension of each political party’s general approach to international relations. The Liberal Party attempted to create an image of Canada as a good international citizen with deep commonalities with many countries, while the Conservative government has been criticized for its apparently more distant stances on both AIDS and aid to developing countries. The Liberal Party has also traditionally attempted to take stances that were more strongly independent of American policy preferences than the Conservative government has. Under the Conservatives, the Canadian delegation took a very low-profile role at the development agenda talks up until the delegation’s stance on ‘access to knowledge’, which was reported to be very much in line with the American position.
- Finally, Canada’s representatives to WIPO are government experts in the field of intellectual property policy in Canada and are therefore aware of the domestic policy directions being taken. Canada is currently in the process of reforming its copyright legislation and is considering how it will make use of flexibilities available under WIPO treaties. Therefore, while Canada’s position may be viewed as being more conciliatory towards developing countries than that of the United States, Canada’s position has generally reflected the interests not only of developing countries, but also of many developed countries, in balanced intellectual property legislation.