WIPO development agenda update

Development agenda meetings resumed again this week at WIPO, with some interesting gains and some major losses for developing countries. On the agenda was a set of 71 broad-ranging proposals towards better integrating the interests of developing countries in WIPO's work. The goal of the meeting was to narrow down and refine the 71 proposals into a set on which all countries could agree. This set will be recommended to recommend to the WIPO General Assembly for approval in the fall.

The 71 proposals, referred to as 'Annex B' were considered to be more difficult to reach consensus on than 40 'Annex A' proposals, discussed in February meetings, on which it was thought consensus could be more easily achieved. The fact that the Annex B proposals were on the agenda at all is a win for developing countries, who at this time last year shut down the development agenda meetings over attempts to wipe this set of more difficult proposals off the agenda altogether. In that light, any Annex B proposal that is recommended to the General Assembly is a testimony to the growing power of developing countries at WIPO.

The biggest wins for developing countries

Some of the biggest proposals that seem set to go forward to the General Assembly are:

• "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."
• “To initiate discussions on how, within WIPO’s mandate, to further facilitate access to knowledge and technology for developing countries and LDCs [least developed countries] to foster creativity and innovation and to strengthen such existing activities within WIPO.”
• "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."
• and various proposals to "make available advice" on the "understanding and use of flexibilities contained in the TRIPS Agreement," and to address "potential flexibilities, exceptions and limitations for member states" in working documents and norm-setting activities

The biggest losses for developing countries

Many proposals appear to have been dropped from the final recommendation list. Some of the most significant proposals that appear to have been dropped are:

• A proposal to establish an Access to Knowledge treaty
• A proposal to establish a multilateral agreement putting publicly-funded research in the public domain
• A proposal to examine non-intellectual property and/or non-exclusionary systems such as free software and Creative Commons
• A proposal to amend the WIPO constitution to include development objectives
• A proposal to establish an independent WIPO Evaluation and Research Office (WERO) tasked with evaluating WIPO's programs and activities in terms of their development impact
• A proposal to carry out independent impact-assessments on the impact of WIPO norms and activites on development
• A proposal that WIPO's Advisory Committee on Enforcement should "tackle how to best ensure the implementation of all TRIPS-related provisions, including those that provide for exceptions and limitations to the rights conferred."
• A proposal that WIPO should develop criteria and methods to select essential technologies and monitor and facilitate their diffusion; and the creation of a list of essential technologies, know-how, processes, methods
• Several proposals intended to help developing countries deal with anti-competitive practices in IP

Overall, the 71 proposals have been narrowed down to about 20. A further 24, distilled from Annex A, are also expected to go forward. That is a total of over 50, and 20 more than might have been expected a year ago. Despite the losses, this week's development agenda meetings are being hailed as a success.

More information
IP-Watch has carried excellent stories on the development agenda meetings.
James Love of Knowledge Ecology International has been tracking events here and here.
Thiru Balasubramaniam has also been tracking things.
The EFF has good notes from Monday to Wednesday's meetings.
Anupam Chander made some notes from the first day.

Details

Here are some of my more extensive notes on the gains and losses , based on IP-Watch stories. I compared the proposals IP-Watch says are now going forward with those contained in the original Annex B in the PCDA/3/2 document, paraphrasing the proposals. The numbers in brackets refer to the original proposal numbers in PCDA/3/2, which were divided into clusters A through F.

Cluster A

Proposals that went through:

1. on capacity-building in national IP offices, ensuring balance between IP protection and the public interest
2. on strengthening capacity to protect national creations and scientific/technological infrastructure
3. on technical assistance being development-oriented and demand-driven (similar or the same as a proposal from Cluster A)

Proposals that got significantly watered down:

1. on flexibilities: WIPO will now make available advice on use of flexibilities; previous proposal said WIPO should have principles to ensure full advantage is taken of flexibilities

Most significant proposals lost:

1. making publicly available info about design, cost etc of technical assistance programs
2. expansion of technical assistance to include competition law and policies addressing abuses of IP
3. ensuring laws and regulations are tailored to each country’s level of development
4. separating norm-setting from technical assistance
5. ensuring national offices are not overburdened (13)
6. keeping social costs at a minimum (14)
7. model laws on anti-competitive provisions of TRIPS

Cluster B

Proposals that went through:

1. promoting norm-setting activities supporting a robust public domain
2. initiation on discussions of access to knowledge and technology
3. on participation of / consultation with NGOs and consultation prior to norm-setting activities (26)
4. norm-setting supportive of development goals of UN system (27?)
5. acceleration of treaty on TK and genetic resources (18)
6. safeguard of national IP implementation (29)
7. dealing with anti-competetive licensing (36)
8. promoting flexibilities (37, 17)

Developed country proposals that went through:

1. Collection of data on piracy and counterfeiting (58 – from Cluster D)
2. Surveys of economic growth (55)/ Best practices for economic growth (moved from Cluster D)

Proposals that got significantly watered down:

1. Establishing treaty on Access to Knowledge (35) became initiating discussions on access to knowledge and technology

Most significant proposals lost:

1. Establishing a treaty on Access to Knowledge (35)
2. Development friendly guidelines and principles for norm-setting (25)
3. Ensuring norm-setting fully compatible with other international instruments, especially Human Rights instruments (28)
4. Inclusion of special and differential treatment provisions for developing and LDCs (30)
5. Ensuring policy space for developing countries in norm-setting (31)
6. Examining non-IP systems of fostering creativity, such as free software and creative commons (33)
7. Ensuring new norm-setting is started according to assessment of their development impact (34)

Cluster C

Proposals that went through:

1. facilitating access to foreign patent information (41) – publicly available only
2. advice “on how to gain access to and make use of IP-related information on technology” (NEW)
3. an opportunity for exchange of info on links between IP rights and competition policies (NEW)

Proposals that got significantly watered down:

1. new body on technology transfer (42) or a standing committee on IP & technology transfer (50) became inclusion of technology transfer issues in an appropriate WIPO body

Most significant proposals lost:

1. multilateral agreement putting publicly-funded research in the public domain (53)
2. incorporation in IP treaties and norms provisions dealing with anti-competitive behaviour or abuse of IP rights (47)
3. development of criteria and method to select essential technologies and monitor and facilitate their diffusion (40); a list of essential technologies, know-how, processes, methods (43)
4. relaxation of patent rules on technology (41)
5. measures to ensure transfer of technology (46)
6. development-friendly principles on technology transfer (45)
7. to help developing countries be involved in R&D related to technology in Multilateral Environmental Agreements (44)
8. mechanisms for helping developing countries request enforcement of anti-competitive practices by developed country authorities (48)
9. a fee on patent applications to promote R&D in developing countries (49)
10. commitments like TRIPS 66.2 (51)
11. work to resolve information asymmetry between technology buyers and sellers (52)

Cluster D

Proposals that went through:

1. opportunity to exchange experience on collaborative projects such as Human Genome Project and IP models (B38)

Proposals that got significantly watered down:

1. the establishment of an independent WIPO Evaluation and Research Office (WERO), proposals for independent impact assessments (54, 61, 63), and proposals for evaluation of the links between IP and development (59) became a statement that WIPO may do studies on links between IP and development

Most significant proposals lost:

1. WERO
2. Independent impact assessments
3. Consideration of alternatives within and outside IP system to form a basis for norm-setting “with less monopoly of knowledge” (62)

Developed country proposals lost:

1. Measuring economic contribution of IP industries (56, 57)

Cluster E

Proposals that went through:

1. none

Proposals that got significantly watered down:

1. Formal and informal meetings organized by the International Bureau should be held in Geneva in transparent manner to all members; the proposal originally referred to meetings held between members or organized by the International Bureau

Most significant proposals lost:

1. Amendment of WIPO Convention
2. Reforms to Advisory Committee on Enforcement to include enforcement of exceptions and limitations

Developed country proposals lost:

1. Reinvigoration of PCIPD (64)
2. WIPO partnership office (65) (became “to consider how to improve WIPO’s role in finding partners…”)