New article: “The Development Agenda at WIPO: Where is Canada?"

My paper, “The Development Agenda at WIPO: Where is Canada?", has just been published as Chapter 10 in Innovation, Science and Environment: Canadian Policies and Performance 2008-2009 (Edited by Glen Toner. Montreal: Published for the School of Public Policy and Administration, Carleton University by McGill-Queen's University Press, 2008:190-208). It looks at Canada's role at the WIPO development agenda discussions in the past few years.

Love on WIPO

James Love has some interesting commentary on the goings-on at WIPO in the past year. He argues that "WIPO is emerging as forum for real debates over global intellectual property policy."

WIPO Development Agenda: concrete proposals

The WIPO Committee on Development and Intellectual Property has issued a working document (CDIP/2/2) that sets out a number of concrete proposals for the implementation of the development agenda. They include:

1. Instructions to WIPO staff and consultants. It is proposed that the principles set out in the WIPO development agenda on technical assistance (that "WIPO technical assistance shall be, inter alia, development-oriented, demand-driven and transparent, 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. In this regard, design, delivery mechanisms and evaluation processes of technical assistance programs should be country specific.") will be:
1. sent out to all staff and consultants with instructions that these general principles be followed
2. included in short, medium, and long-term policy documents
3. included in any new guide or manual on technical assistance
4. included in other WIPO publications
2. Papers to be written.
1. a paper on Trust and voluntary funds - existing and proposed - for least-developed countries to help them exploit intellectual property
2. a study on patent search tools that could be used by least-developed countries and how those might be made available
   
3. Pilot projects.
1. Pilot projects to establish IP info centres in scientific and research institutions
   
4. IT projects
   
1. WIPO proposes to expand upon the information provided on their web site on technical assistance programs, both the part available to the public, and an additional part that will only be available to member countries.
   
2. A database "to match specific IP-related development needs with available resources."
   
5. Training and Other Resources.
1. It is proposed that WIPO continue to provide training and efficiency improvements to IP institutions, including national IP offices and collective management organizations. Awareness-raising is proposed to be conducted with a broader range of organizations, such as technology licensing bodies at universities and business support organizations (such as chambers of commerce, professional associations etc).
6. Staff and consultants.
1. consultants and staff are proposed for these various projects: the paper writing, the IT projects, and the training and gallivanting. By my count, 5 consultants, 10 professionals, 8 general service staff, and one IT professional are proposed.
   

Regarding the instructions to staff and consultants, Feedback, and Training.
The dissemination of instructions to staff and consultants could be a very important foundation of the development agenda at WIPO, integrating it into the culture of the organization. Such instructions, however, if they are to generate real challenge and engagement, must emphasize openness to the various types of ideas and demands - to various ideas of what 'development-oriented' IP might be - that might be brought by recipients of technical assistance. There is a danger that this feedback might be compromised if the training provided by WIPO to the very officials in developing countries who make such demands does not include and allow for an open discussion and a varied set of ideas about what 'development-oriented' IP might be like.
I wonder if it would not be wise, as has been suggested during the development agenda discussions, for a roster of consultants who perform technical assistance to be made available and/or for recipient countries to be able to select from this list and, importantly, to nominate their additional own consultants who might be hired by WIPO to perform these duties. This might increase the independence and diversity of ideas circulating in the area.

Regarding the IT projects.
While much of the information regarding technical assistance is to be made available not publicly but only to member states, it is encouraging to note the statement that "the project will be guided by the principle of transparency and donors and recipients will be encouraged to authorize WIPO to provide as much information as possible on technical assistance activities." Release of information will nevertheless depend on the authorization of involved member states.

Regarding the partnership database (above in 4(2)), the comment of India at the IIM2 must be kept in mind:

“it was imperative to recognize that private sector partners would have a slight conflict of interest in the sort of advice that they provided: therefore, as the idea of the Delegation of the United States of America was developed further, the meeting could, perhaps, think of balancing or neutralizing the conflict of interest by having a civil society partner as part of a trilateral arrangement.” (IIM/2/10 para 129)

Regarding Training.
It is noted that the working paper proposes that, "In future, WIPO activities in this area shall pay greater heed to the need to take into account the interests of the general public."

Proposal for the implementation of development agenda recommendation online

Some of the preparatory documents for the next WIPO Committee on Development and Intellectual Property (CDIP) are now online. The Information Document Related to Adopted Recommendation 10 focuses on the implementation of the development agenda recommendation 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 also be extended to sub-regional and regional organizations dealing with IP.

It outlines various programs of technical assistance "that have been, are being or could be implemented by WIPO in the future."

While the overwhelming focus of these programs is on "training" government officials in intellectual property, strengthening collective management organizations and intellectual property offices, and encouraging the private sector in the exploitation of intellectual property, there are also a few points that stand out. The document proposes:

• "Increased emphasis in [training] sessions on how to develop a balanced IP system,"
• that legal assistance include "Advice with regard to accession to, and implementation of, international treaties, including regional agreements, taking into account the development priorities and objectives and available flexibilities." (emphasis added)
• "Support for regional and sub-regional initiatives to develop regional and sub-regional legislation in the areas of IP, Traditional Knowledge and Traditional Cultural Expressions (for example in OAPI and ARIPO),"
• "Organization of strategic seminars or fora for policy makers and senior IP administrators to discuss and share their views on emerging IP issues such as traditional knowledge, copyright in the digital environment, the role of IP in economic development, flexibilities in IP system, IP and Public Health, strategic use of patent information, evolving role of IP administrations in national development, etc.," and the "Inclusion in such fora of more topics relating to IP protection, public policy objectives and public interest," (emphasis added)

The document also notes, in its proposals with regard to small and medium-sized enterprises (SMEs), that:

SMEs are not only creators but also users of IP. Thus the program assists them not only to better protect, manage and exploit their innovations and creativity but also to make it accessible to others.

Interesting also are the documents' various references to the 'user community', which at times seems to refer to the users of IP offices and at other times the users of IP.

Given the general emphasis within the document on the usual style of WIPO technical assistance, with the emphasis on promoting the protection of IP and strengthening collective management organizations, which generally serve to export funds to rich countries, the proposals contained in this document cannot be seen as an indication of a sea change at WIPO. Rather, the document contains a few small but potentially important steps in recognizing the complexity of interests in the international IP system.