The Development Agenda: The Implications for IP Governance and the Future of WIPO
In September 2007, the World Intellectual Property Organisation established a ‘development agenda’, which is likely to have important long-term implications for the organisation’s future, as well as the discourse on intellectual property more generally.
The Development Agenda is essentially a set of 45 recommendations, grouped by WIPO member states into six clusters, namely: technical assistance and capacity-building; normsetting; technology transfer, information and communications technologies and access to knowledge; assessment, evaluation and impact studies; institutional matters including the mandate and governance; and other issues.
Why Was a WIPO Development Agenda Necessary?
The Development Agenda should be understood, first and foremost, as a reform platform. The discussion for the establishment of the agenda was initially introduced by Argentina and Brazil in 2004 to address a range of problems which can be grouped into four sets of issues.
The first of these revolves around the evident loss of balance between the public domain and the knowledge appropriated through intellectual property (IP) rights. In simple terms, a growing number of stakeholders, including civil society organisations, academics and governments – backed by new evidence such as that contained in the UK Commission on Intellectual Property Rights Report of 2002 and the ideas generated through processes such as the ICTSD- and UNCTAD-organised Bellagio series on development and IP policy – had reached the conclusion that WIPO was at the forefront of promoting IP rights as an end in themselves as opposed to seeing such rights as a means to serve the socio-economic needs of society.
The second set relates to regulatory capture. WIPO, for various reasons, was seen as being primarily concerned only with the interests and needs of industry actors. For example, while a high-profile Industry Advisory Commission was created by the Director-General to advice the Secretariat, there was no equivalent to represent consumers or the general public, or indeed companies and enterprises that did not rely on a proprietary business model, such as firms whose businesses were based on free and open-source software. Because WIPO derives the majority of its resources from the registration systems it administers and whose users are mostly multinational companies, a view seemed to have developed that such companies were its clients, and therefore the primary stakeholders.
The third set concerns what has been referred to as ‘faith-based’ standard-setting and rulemaking in WIPO. The problem was that proposed new treaties, creating new rights (such as the treaty on the protection of broadcasting organisations), or seeking to harmonise standards (the Substantive Patent Law Treaty – SPLT), were being developed with little or no evidence justifying such rights, or harmonisation, especially for developing countries. In addition, the faith-based approach meant that alternative incentives mechanisms or business models were excluded from discussion at WIPO.
Finally, there was the issue of an undemocratic culture, lack of transparency and bias in WIPO manifested in two main ways. To start with, it was considered that there were serious problems with the orientation and delivery of technical assistance and that the assistance was making it difficult for developing countries and LDCs to implement IP treaties in a developmentfriendly manner. Then there were the instances where the Secretariat would push treaty or other initiatives favoured by one group of member states, mainly developed countries, as opposed to another group of member states, mostly developing countries.
Looking at the four sets of issues that the proponents of the development agenda sought to address, it is patently clear that the proposal for establishing a development agenda for WIPO aimed to strike at a complex web of issues ranging from governance and process to substantive issues through to fundamental philosophical questions about knowledge governance.
The Implications for the Future of WIPO and the IP Discourse
Beyond the vision of the Group of Friends of Development (Argentina and Brazil and the 12 other countries that co-sponsored the original proposal in 2004), there were also attempts outside WIPO to set out a vision of the role of IP in knowledge governance and the place of WIPO in the scheme of things. One such vision was expressed in the 2004 Geneva Declaration on the Future of WIPO (Bridges Year 8 No.8 page 2). The signatories hoped that a development agenda, based on the initial proposal by the Group of Friends of Development, would lead to the realisation of this vision of WIPO.
The WIPO Development Agenda does – or has the potential to do – four things, taking as a starting point the four sets of issues addressed in the original proposal:
- establish a set of general principles on knowledge governance and IP;
- provide a substantive programme of work for WIPO;
- ensure good governance and the democratisation of WIPO; and
- establish a basis for evidence-based standard- setting and rule-making.
To address the first problem, the loss of balance between the interests of IP holders and the interests of society, the Development Agenda establishes a set of general principles on knowledge governance and IP. Examples include recommendation 15 which provides, inter alia, that WIPO norm-setting activities shall be: inclusive and member- driven; take into account different levels of development; take into consideration a balance between costs and benefits; be a participatory process; and be in line with the principle of neutrality of the Secretariat.
Other general principles include some of the recommendations on technical assistance and capacity-building.
The adoption of these principles means that, for the first time ever, WIPO member states have agreed to establish reference points to guide their conceptual, as well as practical, approach to IP in the knowledge economy. The principles are also likely to provide a benchmark to guide norm-setting activities in other organisations and fora.
A New Work Programme for WIPO
In order to address regulatory capture, the Development Agenda sets out a detailed work programme for WIPO. The programme covers a range of activities from treaty-making to research and analysis. WIPO will be expected to commence dedicated work on, for example: access to knowledge and technology; the public domain; limitations and exceptions; transfer and dissemination of technology; the relationship between IP and competition; and special and differential treatment for developing and least-developed countries.
This new set of substantive issues will significantly alter WIPO’s focus of norm-setting and research activities. While the last decade was dominated by various prorights agendas, the full implementation of the Development Agenda would see WIPO address in the coming years a range of issues of interest to developing countries, consumers and firms that depend on alternative incentives and/or business models. The idea that WIPO’s mandate is only to promote IP and nothing else appears to have been abandoned. The stake-holders in WIPO are also expected to change or expand to reflect the change in substantive focus.
To address the problems arising from the ‘faith-based’ approach to standard-setting and rule-making, the Development Agenda establishes, for the first time in WIPO’s history, an evaluation and impact assessment framework. An annual review and evaluation mechanism to assess the development-orientation of all WIPO programmes and activities, including technical assistance and capacity-building activities, is to be developed. To undertake evaluation and impact assessments – and to be able to carry out studies to assess the economic, social and cultural impact of IP systems, as well as on the impact of IP on the informal economy of some WIPO members – the organisation’s capacity to perform objective assessments is to also to be strengthened. This is a quantum-leap for WIPO: a faith-based culture could be replaced with one based on research and evidence.
Good Governance and the Democratisation of WIPO
The Development Agenda establishes a set of parameters and mechanisms to address the democratic deficit in WIPO. In other words, it will be a force of good governance and democratisation of the institution. Three main areas are targeted here: the process of treatymaking, participation of non-traditional players in WIPO, and the organisation of meetings.
A new process for treaty-making has been introduced in WIPO. The components of this process include mandatory, member-driven, open and balanced consultations prior to the commencement of formal treaty negotiations. With respect to the participation of civil society, WIPO will be expected to take measures that ensure wider participation of these organisations in its activities. This could be done, for example, through speedy accreditation to formal meetings, as well as invitations to WIPO seminars and conferences. It is also expected that meetings, especially those that relate to treaty-making, will be organised in a transparent manner and preferably take place at the seat of the organisation to allow wide participation.
If implemented, these democratic practices and transparency measures are likely to make WIPO one of the most open international organisations. Its processes, governance practices and relations with civil society will no doubt be superior to those of most other institutions, including the WTO and the World Health Organisation.
The Determinants of Successful Implementation
The Development Agenda offers an unparalleled opportunity to reform WIPO and change the terms of debate in the IP discourse. While the agenda is by no means a perfect package – a significant number of recommendations could, for example, have benefited from more precision – it provides all the basic ingredients to tackle the core problems which the proponents hoped to address by launching the discussions in 2004. It is, however, not a done deal. The extent to which the original goals are achieved will depend on three key factors, namely: leadership; the staying power of developing countries and the watchdog function of civil society organisations; and changes in the institutional design of WIPO.
The commitment and leadership of the WIPO Director-General will be an important determinant of success . But leadership at other levels will also matter, including leadership of the Chairpersons of the WIPO General Assembly, the Committee on Development and IP, as well as the co-ordinators of the regional groups.
A second determining factor will be the staying power of developing countries as well as civil society organisations and other pro-development actors. Developing countries will have to continue to invest time and political capital in this process. Civil society organisations, which have played the watchdog role over WIPO and its member states, will also have to continue to be active. Without continued democratic scrutiny, incisive analysis and debate, as well as advocacy, the Development Agenda is likely to fail. New voices may also be required to take forward some of the recommendations, such as those related to access to knowledge.
Finally, to effectively implement the Development Agenda, organisational culture and structural changes will be required in WIPO. A first welcome step was taken by the WIPO General Assembly when it established a dedicated Committee on Development and IP. However, the Committee alone is not enough. The organisational culture will have to change, in addition to changes that may be necessary in the structure and organisation of WIPO committees in general, as well as a reorganisation of the Secretariat itself.
Sisule F. Musungu is a director of IQsensato, an international development research and policy think tank, and researcher and policy analyst affiliated to a number of other institutions including the University of Bern and Yale Law School Information Society Project (ISP).