Development Agenda Sparks Renewed Controversy at WIPO Ctte

16 May 2012

Members of the World Intellectual Property Organization (WIPO) found themselves once again at odds last week over how effectively the UN agency is implementing the Development Agenda (DA) recommendations that it adopted nearly five years ago.

The Committee on Development and Intellectual Property (CDIP) is tasked with monitoring the implementation of the 45 DA recommendations, which aim to mainstream development into the organisation's work.

During the 7-11 May CDIP session, persistent divides over how to improve WIPO's technical assistance activities and future work in relation to the public domain delayed agreement on a Chair's summary until late Friday.

No decision on follow-up to TA review

At the forefront of the committee's work was how to advance discussions on the report of an external review of WIPO's technical co-operation, which was called for by member states as part of the WIPO Development Agenda.  The report lists a series of recommendations aimed at improving the delivery of WIPO's technical assistance and ensuring that it is more development-oriented. The review report was briefly considered by the Committee last year but substantive discussion was postponed until last week's session (See Bridges Weekly, 23 November 2011).

In line with a request from member states at the November 2011 Committee meeting that the WIPO Secretariat should prepare a management response, as called for in the review terms of reference, the WIPO Secretariat presented a management response to the review at last week's meeting.

Further, in keeping with a joint US-EU request, the document includes an Annex that divides the review's recommendations into three different clusters: recommendations that could be considered ‘redundant' as they are "already reflected in WIPO activities or ongoing reform programs," (cluster A); recommendations that "merit further consideration," (cluster B); and recommendations that "raise concerns as to implementation" (cluster C).

Developed countries voiced a strong preference for basing discussions solely on cluster B, considering that "it would be unnecessary to review redundant recommendations," such as those under cluster A.

The US, speaking on behalf of developed country bloc Group B,  added that the call for a shift in WIPO "from an IP-centric to development-oriented organisation" - as identified in some cluster C recommendations - is problematic and contradicts the organisation's mandate "to promote the protection of IP throughout the world."

Developing countries, for their part, stressed that the clusters represented "an opinion of the Secretariat," with Brazil specifically saying that "there are some recommendations in cluster A that would need further consideration."

"There is no agreement in the membership on what is relevant and what is not," Bolivia added.

Carolyn Deere Birkbeck, who co-authored the review together with Santiago Roca, added that she "would not put as many recommendations in the ‘redundant' category," as several of the recommendations considered ‘redundant' under cluster A remained pertinent in her view.

She added that, while the Secretariat has taken some ‘positive steps' to address some of the technical assistance shortcomings highlighted in the review, there is still much to be done by the Secretariat to improve its management and coordination of assistance, which she noted ought to be of interest to all member states.

Moreover, she observed that shortcoming with regard to the ‘development orientation' of WIPO technical assistance will require not only further actions by the Secretariat but also greater guidance from member states.

In light of these discussions, developing countries lent their support to a new joint proposal by the Development Agenda Group (DAG) and the African Group, which identifies 13 sets of concrete follow-up actions that build from the external review and management response.

These include the elaboration of ‘guidelines' regarding future development-oriented assistance, and a request that the Secretariat prepare a ‘manual' that details modalities and procedures for technical assistance delivery, including how, and for what activities, governments and stakeholders can acquire WIPO support.

Discussions on the follow-up to the technical assistance review will continue at the next CDIP session.

DG report receives mixed response

Also during the week-long meeting, WIPO Director General Francis Gurry presented a report on the implementation of the DA recommendations, noting that "it is time to take stock of the progress that has been made."

"Three years and a half ago there was just a set of mere recommendations. Today, there are projects initiated, concluded, and evaluated," he said, referring to the 23 projects carried out by the organisation that together cover 29 DA recommendations.

Several developing countries argued that, despite the progress made, the "third pillar" of the CDIP mandate - which says the Committee should serve as a forum for discussions on IP and development issues - has not been adequately implemented. One of the ways to achieve this, they said, is by inserting a standing agenda item on "IP and development," a proposal made by Brazil in 2010 that has seen little movement to date (See Bridges Weekly 11 May 2011).

The DAG and African Groups also commented on delays in the implementation of a co-ordination mechanism aimed at ensuring that all "relevant WIPO bodies" report annually on their efforts toward integrating the DA recommendations into their work. The mechanism was adopted in 2010 by the WIPO General Assembly.

"General opposition to implementing the Development Agenda co-ordination mechanism when it comes to Programme and Budget Committee constitutes a non-comprehensive approach that undermines all those efforts," the DAG said during the discussions.

Public domain debate heats up

Discussions on IP and the public domain proved particularly divisive, especially regarding a document prepared by the Secretariat clarifying the scope of some recommendations contained in a study on copyright and related rights and the public domain.

Recommendation 16 of the DA calls upon WIPO to consider the preservation of the public domain within the UN agency's normative processes, along with calling for deeper analysis of "the implications and benefits of a rich and accessible public domain."

Several developing countries urged WIPO to continue its work on public domain, yet developed countries - such as the US, the EU, Norway and Switzerland - felt it was important to "know what we want to achieve before any further work can be conducted" in this area.

Members find agreement on flexibilities, Burkina Faso project

Despite disagreements in the above-mentioned areas, the CDIP was able to find convergence on a few specific issues and projects in  the  context of DA implementation.

As in previous sessions, members highlighted the importance of addressing patent-related flexibilities at the CDIP without duplicating the work in other WIPO committees, specifically the Standing Committee on the Law of Patents.

At last week's meeting, the Secretariat was asked to prepare a document on this subject, which will focus on four flexibilities outlined in the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): patentability of plants, patentability of software-related inventions, criminal sanctions in patent enforcement, and security exceptions to patent rights.

The Committee also agreed to launch a project proposed by Burkina Faso to strengthen and develop the audiovisual sector in the country and in other African member states - a decision that received wide support from developed and developing countries alike.

"This project is extremely interesting and it is exactly the kind of project that should inform the work of the CDIP. It promotes development through intellectual property," the US said on behalf of Group B.

The WIPO General Assembly will discuss the work of the Committee in the fall.

ICTSD reporting.

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