2009: The Year Ahead for WIPO
2009 is poised to be an important year for the World Intellectual Property Organisation as the organisation faces many challenges, particularly in terms of balancing the interests of developing and developed countries and addressing pressing public policy concerns such as public health, food security and climate change. In addition, WIPO is likely to witness a number of important internal changes as a result of the measures introduced by its new Director General (DG), Francis Gurry, to improve the organisation’s performance and effectiveness.
In this regard, Gurry, is expected to vigorously pursue the implementation of a programme of ‘strategic change’ aimed at enabling the organisation “to respond more effectively to the rapidly evolving technological, cultural and geo-economic environment.”
To that effect, a revised programme and budget was approved at an extraordinary session of the WIPO Assemblies on 12 December. In addition to existing goals, the revised documents include new ones such as a focus on building respect for intellectual property (IP); developing global IP infrastructure; enabling responsive communication; becoming the world reference source for IP information; and addressing IP in relation to global policy challenges.
At the Secretariat level, new key positions advertised after Gurry’s election -- such as Chief Economist and Director of Global Challenges -- will be filled in 2009. While they reflect the organisation’s recognition of emerging challenges, the profile of the candidates chosen may give some indications as to what direction the organisation will take in dealing with these important issues. Furthermore, a number of senior officials who served under Gurry’s predecessor are due to leave their posts, giving the new Director General the opportunity to further consolidate his grip on the Secretariat and push through his reform agenda.
With regard to substantive issues, the implementation of the WIPO Development Agenda (DA) is likely to emerge as a key priority for most member states this year. The initiative was launched in 2004 by developing countries with the aim of integrating the development dimension in all aspects of WIPO’s work.
Developing countries have high expectations that the new DG will actively pursue the implementation of the WIPO DA recommendations agreed upon in 2007. Civil society groups are anxious to see that WIPO’s approach to IP and technical cooperation effectively contribute toward promoting a development-oriented IP system in developing and least developed countries. From his side, Gurry affirmed that as an indication of the high priority given to the DA implementation, a programme, under his direct supervision will be devoted to ensuring effective coordination of work to implement the WIPO DA throughout the organisation.
The next meeting of the Committee on Development and Intellectual Property (CDIP) – to be held from 27 April to 1 May - will be significant in achieving further progress on the implementation of the WIPO DA recommendations.
In this regard, the WIPO DA featured prominently in deliberations about the organisations’ revised programme and budget for 2008-2009. Developing country members were initially concerned that a portion of the funding for items in the DA would be contingent upon savings in the other areas of WIPO’s work, thus running the risk of uncertainty regarding funding for the implementation of the DA activities.
However, in light of these concerns, the budget was reworked and subsequently approved by member governments with a guaranteed committed amount of roughly US$ 7 million (8 million Swiss francs) allocated to the implementation of WIPO DA related activities. A new budget for 2010-2011 will be approved next September at the annual General Assemblies.
The protection of traditional knowledge is another area of WIPO’s work in which many stakeholders have pointed to the need for greater movement and even an agreement -- not only to deal with greater protection at the domestic level but also with cross-border misappropriation of traditional knowledge, and traditional cultural expressions. The Centre for International Environmental Law (CIEL) in particular has strongly urged the committee to refocus on this issue, and has stressed the need for a process for tracking compliance with principles of prior informed consent and equitable benefit sharing. However, the lack of consensus at the last meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in October, on a possible inter-sessional mechanism to accelerate the committee’s work reflected the continued gap between country positions even on procedural issues which were perceived by some as possibly prejudicing their positions on future substantive work.
Exceptions and limitations to copyright will also be prominent in WIPO’s activities in the year ahead. At the last meeting of the Standing Committee on Copyright and Related Rights (SCCR) in November, this issue took centre stage in the deliberations.
Exceptions and limitations to copyright allow individuals, under certain conditions, to use a work without requiring authorisation from the copyright holder. Advocates and supporters for action on this issue are seeking to strengthen exceptions and limitations in order to achieve a better balance between the rights of copyright holders and the public interest. At the last meeting of the SCCR, NGO advocates said that they expected to see in-depth discussion on exceptions and limitations, especially in relation to educational activities, libraries and the visually impaired. In fact, a proposal by the World Blind Union for a treaty on exceptions and limitations for the visually impaired received much attention from delegates during the SCCR meeting in November. The next meeting of the SCCR is scheduled for 25-29 May 2009.
A similar sentiment is expressed in the Standing Committee on Patents (SCP) where members hope to re-engage in meaningful substantive discussion under the SCP’s new work programme adopted last year. Stakeholders are also aware that this has long been the new DG’s area of expertise and perhaps that may contribute to further momentum in the Committee’s work. The next session of the SCP will be held on 23-27 March 2009.
In this regard, WIPO will be holding an important Conference on Intellectual Property and Global Challenges on 13-14 July, following a proposal by the SCP. The conference will address issues relating to the interface of IP with other areas of public policy, notably health, the environment, climate change, food security and disability, and serve as a global forum for discussion of some of the major challenges in relation to IP the world faces today.
Across the board, many stakeholders are cautiously optimistic that 2009 may witness some movement on many substantive issues on which discussions have been deadlocked for many years at WIPO. Some are hopeful that the election of a new DG who is well versed in the technical aspects of the issues under discussion will contribute positively and decisively to achieving such progress.
Some observers keen to overcome the stalemate in the main areas of WIPO’s substantive work are contemplating the merits of taking a ‘single undertaking’ approach to the discussions – as does the WTO – under the assumption that compromises might come more easily if officials negotiate just one comprehensive package of issues.
According to Professor Frederick Abbott, Professor of Law at Florida State University College of Law, “there has for some time been an implicit undercurrent of quid pro quo negotiating involving adoption and implementation of the Development Agenda and progress on Substantive Patent Law Harmonisation. Diplomats have perhaps understandably been reluctant to acknowledge an implicit linkage. It might, in fact, be healthy to make explicit what is implicit and move toward the concept of a grand bargain.” However, he adds that “this does not imply that any stakeholder should give up its principal objectives, but may increase the likelihood that all sides will see the benefits of reaching progressive accommodations.”
Professor Ruth Okediji, Professor of Law at the University of Minnesota, is more equivocal. She indicates that “while there are strategic benefits to such an approach, there is always the question of whether the net gains outweigh the losses that occur through such cross-bargaining” adding that “the WTO experience shows, in the absence of an enforcement mechanism that allows cross-retaliation, developing countries and Least Developed Countries (LDCs) have relatively little power post-bargain to extract compliance from the industrialized countries.” She concludes that “in the absence of clearly identifiable gains and an agreed minimum set of achievable outcomes, a single undertaking deal should be approached with caution.”
Ultimately, divergences between developing and developed countries that surfaced during the meeting of the Revised Programme and Budget Committee last December and previously at the IGC meeting in October, are a staunch reminder of the magnitude of the challenges facing WIPO to move forward while balancing the interests and perspectives of its different stakeholders.