<incom> SUNS: Development Agenda meeting ends, slow progress on implementation

[Soenke Zehle]

[via a2k]

-------- Original Message --------
Subject: [A2k] SUNS: Development Agenda meeting ends, slow progress on 
implementation
Date: Wed, 12 Mar 2008 05:05:08 +0800
From: Sangeeta <ssangeeta at myjaring.net>

Please find below our news report on the discussions and outcomes of the
first meeting of WIPO¹s newly established Committee on Development and
Intellectual Property which ended on Friday, 7 March.

For more information on WIPO DA pls see
http://www.twnside.org.sg/IP_wipo.htm
-------------------------------------------------------------------------

WIPO: Development Agenda meeting ends, slow progress on implementation
Published in SUNS #6432 dated 11 March 2008

Geneva, 9 Mar (Sangeeta Shashikant) -- The first meeting of WIPO's newly
established Committee on Development and Intellectual Property (CDIP) ended
on Friday 7 March after making slow progress on six recommendations relating
to technical assistance.

Developing country diplomats who attended the meeting gave a cautiously
optimistic assessment of the meeting. Brazilian diplomat Guilherme Patriota
described the outcome as "appearing to be lacklustre at first glance, but a
positive first step in reality". An Egyptian delegate said that he wished
that the Committee could have made more progress, but he acknowledged that
this was the CDIP's first meeting.

Most developing countries appeared to have taken a cautious attitude, as
they were not sure what to expect from the first CDIP meeting, and for them
the fight for implementing the Development Agenda (DA) is long-term. On the
other hand, developed countries were concerned about budgetary implications,
as they were looking to restrict the budget of the organisation.

To some delegates, it appeared that some members of the Secretariat were
interested in having progress on the Development Agenda so that there would
be a bigger budget and broader mandate for WIPO through implementation of
the agenda.

The week-long meeting was held mainly in an "informal mode", which means
that most of the discussions may not be captured in the report of the
meeting.

The meeting mainly discussed procedural issues; 6 of the 45 adopted
proposals on technical assistance (cluster A) and the committee's future
work. It reached broad agreement on 6 of the 45 adopted proposals subject to
the principle that "Nothing is agreed until everything is agreed". The
Secretariat has been asked to assess the human resource and financial
implications.

The meeting did not however agree to any concrete outcomes except that work
should continue in informal sessions on the rest of the proposals, in
particular those with human and financial implications.

The CDIP was established by the last WIPO General Assembly with the mandate
to develop a work programme for implementation of the 45 adopted
recommendations; monitor, assess, discuss and report on the implementation
of all recommendations adopted, and for that purpose it shall coordinate
with relevant WIPO bodies; discuss IP and development-related issues as
agreed by the Committee, as well as those decided by the General Assembly.

In an interview with SUNS after the meeting concluded, Patriota, whose
country Brazil has been one of the major advocates of the Development
Agenda, said that "there is a presumption in the Development Agenda that a
"one size fits all" solution to IP, indifferent to the diverse national
landscapes and realities specific to developing countries, is no longer an
acceptable outcome for WIPO as a UN Specialized Agency".

Thus, he added, "the mere existence of the Committee constitutes an historic
opportunity to establish a new equilibrium, or point of convergence among an
increasingly diverse range of views that has sprung up outside of the WIPO
sphere on how intellectual property relates with economic and social
development goals, how it impacts on countries' national public policy
space, and on where the right balance between levels of protection and
promotion of innovation and creativity actually lies."

Patriota said one of the fundamental challenges facing the CDIP is
translating the broadly stated recommendations into specific executable
actions.

During the meeting, the approach taken by the developed countries and some
Secretariat members seemed to be to filter the broadly stated Development
Agenda recommendations into executable actions, to which a price tag is to
be attached.

However, in Patriota's view this piece-meal approach does not meet the
underlining intention of launching development agenda. What is required is
to transform the way WIPO does its work, and its mindset on IPRs so as to
become development-oriented.

He said that the "Development Agenda is about WIPO moving beyond a narrow IP
holder's-centric perspective of intellectual property -- whereby protection
of rights is all and everything that must be achieved, and the higher the
levels of protection the better -- to adopting a broader perspective on the
complex relationship between IP and economic and social development, taking
into account particularly the different realities faced by developing
countries."

The development perspective would also include perspectives of a broader
constituency of non-IP holders in developed countries.

If WIPO is to retain a relevant role in the international IP system, more
efforts will have to be made to provide adequate responses to the complex
and nuanced questions that are being raised on IP issues from many corners
of the world - North and South, Patriota said.

He added that "the idea that everything in the development agenda must be
translated into a specific project reflects of itself the biased view of
those WIPO members who do not wish to accept the Development Agenda as a
transformational tool, conceived to promote substantive changes (cultural
and systemic) in the way WIPO has been carrying out its work."

Several other developing country delegations, speaking privately, echoed
similar views. They felt that discussions in the CDIP should lead to a
much-needed culture change in WIPO. This would not be achieved by a
"quick-fix" anticipated by the developed countries and the Secretariat.

A Chair's Summary was presented by the Chair of the CDIP, Ambassador Trevor
Clarke of Barbados, on the final day. On future work, it said that there was
a need to continue consideration of the work-program for implementation of
the adopted recommendations.

The Summary added that the Chair will organise informal consultations before
the next CDIP session (that is to take place in July), and these
consultation would cover the adopted recommendations "with attention being
paid to those recommendations with additional financial and human resource
requirements to enable the Secretariat to make the necessary assessments".

On the outcome, Patriota said that although it was drafted in relatively
vague terms, trust had been given to the Chair to lead the process and to
the Secretariat to review some of the documents discussed, and members
expected the process to move forward with positive results.

He added that while developed countries were initially not supportive of the
consultations, they accepted it in light of the broad support from
developing countries.

Patriota viewed the debate itself, and a benign level of confrontation among
different ideas and perspectives, as being "a healthy and necessary
exercise" that "might help promote the changes so desired by a broad
constituency of WIPO members and stakeholders".

During the week, discussions took place on 6 of the 45 adopted
recommendations on the basis of initial working documents prepared by the
Chair (in consultation with member states and the WIPO Secretariat) i. e.
Preliminary Implementation Report with respect to the 19 proposals (to be
implemented immediately) and Initial Working Document regarding the
implementation of 26 agreed proposals (WIPO Doc. CDIP/1/3). The Group of
Friends of Development (GFOD) also submitted proposals on the 6
recommendations.

The 6 recommendations on technical assistance that were discussed were:

-- 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. (Recommendation No. 1 in the list of 19 proposals).

-- Provide additional assistance to WIPO through donor funding, and
establish Trust Funds or other voluntary funds within WIPO specifically for
LDCs, while continuing to accord high priority to finance activities in
Africa through budgetary and extrabudgetary resources, to promote, inter
alia, the legal, commercial, cultural, and economic exploitation of
intellectual property in these countries. (Recommendation No. 2 in list of
26 proposals).

-- WIPO shall display general information on all technical assistance
activities on its website, and shall provide, on request from Member States,
details of specific activities, with the consent of the Member State(s) and
other recipients concerned, for which the activity was implemented.
(Recommendation No. 5 in list of 26 proposals)

-- Request WIPO to develop agreements with research institutions and with
private enterprises with a view to facilitating the national offices of
developing countries, especially LDCs, as well as their regional and
sub-regional IP organizations to access specialized databases for the
purposes of patent searches. (Recommendation No. 8 in list of 26 proposals)

-- Request WIPO to create, in coordination with Member States, a database to
match specific IPrelated development needs with available resources, thereby
expanding the scope of its technical assistance programs, aimed at bridging
the digital divide. (Recommendation No. 9 in list of 26 proposals)

-- 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 (Recommendation No. 10 in list of 26
proposals)

Discussion on each of the recommendations was followed by an oral summary of
the chair on the broad agreement reached in relation to each recommendation.
The working documents of the Chair are to be updated by the Secretariat
based on the summary and interventions made by member states.

On the last day of the meeting, Recommendation 1 was the subject of
controversy. The Chair's document simply lists ongoing and planned
activities of the Secretariat. The Group of the Friends of Development
(GFOD) which is led by Argentina and Brazil) proposed that the
recommendation be taken into account in all WIPO technical assistance
activities, and it should also be added to the manual on staff regulations
and rules and/or in the code of ethics.

The GFOD also wanted the DA recommendations to be incorporated in all WIPO
documents such as the strategic goals in the programme and budget of the
organization, the organisation's medium term plan, in the 2007 general
booklet on WIPO that provides an overview etc.

Explaining the GFOD's position, Patriota told SUNS that mainstreaming
development agenda concepts into the WIPO institutional framework is
critical. Including appropriate parts of the adopted recommendations in such
basic reference documents as the WIPO staff rules and regulations, which
every staff member is committed to learn follow, seems an obvious step in
this direction, he added.

However, according to diplomatic sources, the GFOD's first proposal seemed
to upset the Secretariat.

According to Patriota, during discussions on the issue, the Head of Human
Resources at WIPO made what he described as "an unwarranted statement" to
the delegations that all WIPO personnel are neutral, implying there is no
need for Member States to impose neutrality guidelines on them.

According to Patriota, another staff member the described "flexibilities" as
also the "freedom" to implement standards of IP protection that go beyond
Member's international obligations.

He called such an interpretation "outrageous in technical terms", adding
that the explanation was presented as "a very personal interpretation" of
the term "flexibilities" as it applies to IP and "represents a complete
subversion of the Development Agenda concept".

Following the Secretariat's intervention, Brazil immediately intervened
during the informal session stating on record that it does not agree that
"TRIPS-plus" measures are considered flexibilities. Flexibilities refer
instead to flexibility of policy space such as exceptions and limitations,
added Brazil. It said it did not agree to the Secretariat staff member's
definition, and it does not know why the Secretariat mentioned it in that
fashion. It asserted that the issue of flexibilities should be the subject
of a debate.

Patriota also clarified that for developing countries to take on measures
beyond their obligations in the TRIPS agreement would amount to "rigidity as
it relinquishes policy space".

Patriota told SUNS that "the irony of the situation cannot be overstated,
for both WIPO officials seemed unaware of how their behavior and statements,
there and then, denied the very neutrality of WIPO staff they were so intent
on asserting: the Head of Human Resources taking a stand against the
Organization being "member-driven" in his blanket defense of his fellow
colleagues; and the supposed expert on flexibilities providing an absolutely
non-neutral interpretation of the concept of flexibility, oblivious to the
views of others, and demonstrating very limited capacity do understand the
crux of the Development Agenda debate".

He said that "bureaucratic and technical arrogance are ultimately self
defeating for the Organization because it hurts its credibility and
establishes a firewall against positive interaction with the outside world".
He remarked that "a refusal to face the issues, as they are being presented
by different stakeholders, is the shortest path to irrelevance".

Another matter of concern to several delegates was the issue of donors and
technical assistance, which is related to recommendations 2 and 9. In
relation to recommendation 2, the GFOD proposed that the use of funds should
not be discriminatory. The creation of a monitoring system for the
destination of the funds was proposed for both the recommendations 2 and 9.

The Africa group was supportive of a monitoring system and expressed the
idea of having general principles concerning the issue.

On recommendation 2, the Chair's working document proposed the preparation
of a paper for the CDIP to update and enhance the information available in
the 2008/2009 program and budget on existing voluntary and funds in trust.
The paper would also report on existing efforts and proposals for future
activities aimed at increasing availability of voluntary funding including
organizing a regular donor conference starting with one in 2008/09.

The establishment of a consultation mechanism with donor agencies to discuss
funding and to formulate programs and projects on a regional, sub-regional
or national level, with provisions of reporting, monitoring and evaluation,
is further proposed in the Chair's working document.

Several queries were raised by delegations on how funds should be
administered, on rules and principles for managing the fund, the modalities
of a monitoring system as well as the consultation mechanism.

On this recommendation, the Chair summarized that the Secretariat will
include, in its paper, an analysis of the implications of these issues. He
added that since countries are donating the funds, the more prescriptive
Members try to be, the less there may be funds, and there needed to be
balance.

>From the Chair's oral summary, while the paper to be prepared by the
Secretariat should address the issue of monitoring of funds, it may not
address the issue that funds should not be discriminatory, an issue raised
by several developing countries at the informal meeting.

It is also not clear whether the paper will address the issue of rules and
principles for managing the funds, although the Chair's summary mentioned
that the recommendations and other relevant elements of the DA can be
brought to the attention of the donors.

Several developing country delegates as well as public interest NGOs
expressed concern that the trend seemed to be moving towards "outsourcing"
of technical assistance to donors and that such technical assistance would
bypass WIPO and the hard fought elements of WIPO DA.

The issue of "donors" returned during discussion on recommendation 9. Here,
the Chair's working document proposed the establishment of an effective
diagnostic tool for assessing the IP-related development needs of countries,
in conformity with the development agenda proposal, and setting up a
match-making and clearing house mechanism.

The document also proposed collaborative mechanisms for regular collection
of information on the potential donors and partners as well as their
available funds and expertise for WIPO to match with the specific needs.

With regard to this recommendation, originally proposed by the US, Brazil
stressed the importance of monitoring and assessment. It also raised several
points, such as what is the role of WIPO and its members, does the
Secretariat simply set up the site while prospective donors offer money and
demanders fill in a form, or will there be a pro-active role for the
Secretariat, how do members know which activities will conform with the
general principles and guidelines of DA, and how will there be
accountability.

According to an African delegate, the Africa Group requested that "bridging
the digital divide" be reflected in the diagnostic tool and database.

In relation to recommendation 5, the Chair's working document proposed to
initiate work on a project to design and develop a consolidated database for
all such activities including human resource development and to update it
regularly. It added that general information will be available on the WIPO
website while more detailed information will be made available on specific
activities based on appropriate authorisations.

At the meeting, the GFOD stressed the need for transparency and that
information on the website should include the name of the WIPO department in
charge of the technical assistance activity, the name of the project,
summary of the project, donor, amount of money involved, destination of the
technical assistance activity (country and recipient agency). The main
purpose of the proposal was to ensure access to information.

Some delegations wanted more clarity on what is "general information" and
what is "detailed information" with suggestions that there should be enough
information so that a country may learn from the capacity building
experiences of other countries.

According to diplomats, on this recommendation, the Chair orally summarised
that while there may be no difficulty in providing the name of the project,
the department involved, the destination/agency receiving technical
assistance, and the country of origin of consultants, there may be
difficulty with regards to revealing the consultant's name, summary of
project, name of donor and the amount of money involved.

Ambassador Clarke in his summary further said that the fundamental principle
is that specific information will only be provided following appropriate
authorizations and that implementation of the recommendation will be based
on the principles of the DA. The Chair said that participants had to strive
for balance and that donors would be presented with the DA elements and that
it is for them to decide how much information should be revealed.

With regard to recommendation 8, the Chair's working document proposed a
study to identify relevant databases and other resources and to propose
options for licensing or otherwise providing access to those databases for
IP offices and/or for the general public particularly in developing
countries. It also proposed approaches for the use of IP information in
particular patent information and documentation.

The GFOD proposed (1) the preparation of a model contract to be discussed in
the committee and to be adopted as a reference; (2) reporting of activities
to the CDIP; and (3) a forum between database owners and interested
stakeholders to facilitate access.

The aim of the model contract and negotiating preferential rates is to allow
IP offices in developing countries to gain access on more favourable terms
to some of the key databases that contain patent information. These
databases could assist in improving for example the quality of patents
granted but they are often inaccessible to developing countries due to the
high entry fees.

Since there were some concerns about the proposed model contract and the
cost involved, the Chair summarised orally that there was a need for further
discussion. The idea of a model contract and a possible forum are still on
the table for further discussion.

Discussion on recommendation 10 was lengthy and also the subject of much
debate. The Chair¹s working document proposed many items including making
efforts to strengthen the institutional framework and coordinating
mechanisms for improved management and enforcement of IP rights; forging
functional links between IP administrations and other national institutions
in several areas such as R&D, industry, enforcement; to study the
feasibility of establishing procedures for sharing the accomplishment of IP
granting tasks; and this could result in new models of technical cooperation
to be implemented on a sub-regional and regional level etc.

In contrast, the GFOD proposal stresses technical assistance activities
focusing on improving the quality of patent examination, and taking into
account "fair balance" between IP protection and the public interest.

According to diplomats, the Chair in summarizing the interventions said that
there does not seem to be enough in the Secretariat proposals (in the
Chair¹s working document) that responds to the "fair balance". He sought new
ideas from Member states.

Responding to concerns by some developing country member states about WIPO
taking an active role in enforcement issues, the Chair summarized that all
such efforts should be on request of member states.

Due to the dissatisfaction of some delegations about activities proposed, on
Brazil's request the Secretariat is to propose a menu of options for member
states to consider. Recommendation 10 is also to be further discussed at
future meetings.

After the meeting ended, some developing country delegates and NGOs gave
comments to the SUNS on their observations on the discussion on technical
assistance at the meeting.

Patriota from Brazil told the SUNS that most of Secretariat's text was an
attempt to translate the principles and recommendations of the Development
Agenda (that had been agreed to) into a long listing of ongoing activities,
but according to the Secretariat, for reasons of confidentiality, they
cannot be fully described, disclosed or debated. At the same time, he said
it is alleged that due to the specificities, these activities cannot be
taken up as standard or typical practices of the Organization.

This gives the Secretariat a kind of shield against multilateral scrutiny
and monitoring of its work and practices in the field in developing
countries, he said. The way to overcome the limitations of such an approach
would be for the Secretariat to present to Members a clear and structured
set of types of activities it has been performing or may perform in the
future, as an upfront menu of options for technical and legislation
assistance.

This would allow members to give their opinion as to whether or not the
content, orientation and nature of the Secretariat's activities really
conforms to the principles and guidelines of the Development Agenda agreed
framework, he added.

Patriota said that the WIPO Director General's decision to create a specific
unit within the Secretariat responsible for the Development Agenda, though
practical in many ways, challenges the desired overarching and holistic
nature of the DA initiative.

This is because the adopted recommendations cut across all sectors of the
WIPO structure, from technical assistance, to norm-setting, to transfer of
technology, to issues of exceptions and limitations in copyrights, to
patents, to TRIPS flexibilities, to dealing with the public domain, to
developing a pool of expertise on competition issues.

He stressed that the CDIP should not be seen in isolation from other
committees (including the Standing Committee on Patents, the Standing
Committee on Copyrights or the Advisory Committee on Enforcement). Its work
and deliberations must impact other bodies of WIPO as appropriate.

Knowledge Ecology International, a US-based NGO that has been very active in
following WIPO activities, said it was concerned with the way the meeting
went on, particularly the dogged determination of the Secretariat to conduct
business as usual in its technical assistance to developing countries.

It was especially unhappy with how the Secretariat dispensed its advice,
including packaging "TRIPS plus" measures as "flexibilities" of the TRIPS
Agreement. It was also concerned about how the meeting insisted on costing
every Development Agenda recommendation. "Some recommendations are holistic
principles which cannot be given a price tag," said a KEI representative. +


------ End of Forwarded Message