WIPO Dev Agenda Blogs: Day 2

> http://www.eff.org/deeplinks/archives/003511.php#003511
> http://www.fsfe.org/Members/gerloff/blog
> http://lists.essential.org/pipermail/a2k/2005-April/000229.html

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> http://www.eff.org/deeplinks/archives/003511.php#003511

Blogging WIPO's Development Agenda Meeting - Day 2
April 14, 2005

For 30 years, the World Intellectual Property Organization (WIPO) has worked primarily to expand the scope of intellectual property protection around the globe. Whether it's bringing patents to countries where previously there were none, or expanding the entitlements of copyright holders in developed countries, WIPO has always started from the premise that more IP is always better for everyone.

That's changing. Countries around the world -- even across the "north-south" divide of developed and developing nations -- are becoming wary of over-protecting intellectual works. Everything from free speech and open source software to the availablity of essential medicines is impacted by runaway legal regimes, and the world is taking notice.

At WIPO, the most concrete expression of this concern has come from a 14-country coalition called the "Group of Friends of Development" (GFoD), which submitted a fantastic proposal at the Development Agenda meetings on the need for IP policy that fosters the economic and social development of countries, not just the development of IP regimes (http://www.cptech.org/ip/wipo/fod-iim.doc). The proposal states:


    "While intellectual property protection may in particular circumstances promote creativity and innovation, it is neither the only way nor necessarily the most efficient or appropriate means for doing so at all times and in all sectors of the economy. Similarly, it is highly questionable that upward harmonization of intellectual property laws, leading to more stringent standards of protection in all countries, irrespective of their levels of development, should be pursued as an end in itself. WIPO must, as a matter of course, examine and address all features of existing intellectual property rights, including the economic and social costs that IP protection may impose on developing and least developed countries, as well as on consumers of knowledge and technology in both the North and the South."


Below the jump are the running notes from Day 2 of the Development Agenda meetings (see Day 1 notes here). Stay tuned -- we'll have more on how these concepts are being received when the last of the "civil society" groups speak and the official meeting proceedings are published.

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12 April, 2005

Notes by:

Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on Technology
[TB]

Gwen Hinze, gwen at eff.org, Electronic Frontier Foundation [GH]

Ren Bucholz, ren at eff.org, Electronic Frontier Foundation [RB]

[NOTE: This is not an official transcript. Any errors and ommissions are regretted.]

-=-=-=-=-
Copyright-Only Dedication (based on United States law)

The person or persons who have associated their work with this document (the "Dedicator") hereby dedicate the entire copyright in the work of authorship identified below (the "Work") to the public domain.

Dedicator makes this dedication for the benefit of the public at large and to the detriment of Dedicator's heirs and successors. Dedicator intends this dedication to be an overt act of relinquishment in perpetuity of all present and future rights under copyright law, whether vested or contingent, in the Work. Dedicator understands that such relinquishment of all rights includes the relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in the Work.

Dedicator recognizes that, once placed in the public domain, the Work may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or non-commercial, and in any way, including by methods that have not yet been invented or conceived.
-=-=-=-=-

* Niger:
Niger: After independence, many developing countries introduced pro-development policies. IMF, World Bank policies, etc. WIPO has provided considerable technical assistance to developing countries. It has raised public consciousness on IP. Research initiatives in universities and SMEs. Despite WIPO's involvement, the contribution of IP in these countries is small. In particular:
- involvement of WIPO is piecemeal
- also, never taken into account
- lack of resources allocated by countries
- absence of any IPR development policy at all

What, then, can we expect WIPO to play in this context:
- coordinating activities & cooperation
- working with other UN agencies on development?

* Islamic Republic of Iran:
WIPO shouldn't be limited to promoting IP, but instead view A2K [access to knowledge] as a vital piece of WIPO's responsibility. WIPO should encourage a balanced approach to IP. This organization should be more development-oriented. Iran appreciates WIPO's technical assistance and seminars. However, such contributions should be more in harmony with the requirements of the int'l development community. WIPO should incorporate development issues in all committees.

* Jordan:
WIPO has helped many LDCs, especially Arab countries, protect & promote IP.

We hope that any extension of WIPO's work would be thoroughly interrogated to see how it would work, how it might be financed, and how it would work with other UN initiatives.

The establishment of a database will help LDCs find sources of assistance.

We would like to praise the development agenda of this organization characterized by different approaches. We approve of WIPO's work with NGOs and public interest groups.

* Peru:
We would like to thank Jamaica for its intervention on behalf of GRULAC and we associate ourself with its statement.

And also thank Brazil & Argentina for their comprehensive contribution.

Peru co-sponsored the proposal for a development agenda last year because we see IP not as a goal in itself, but as a way to improve society.

In this report the Sec General compared development to human rights. Curiously, there was no mention of IP in this report. There is mention of access to medicines and making use of new technologies.

How do we make WIPO's goals compatible with our more important goals of development and fostering innovation?

Recently, the National IP office of Peru published a document that contains a list of IP interests in the Peruvian context (commissioned for the FTA proceeding). It was apparent that the breadth of Peru's IP-affected industries demands a more nuanced approach to IP and development.

The importance of this session and upcoming sessions is that we must see how WIPO can help countries with national IP systems that go well beyond just protecting IP; in fact, this could even be subordinate to development goals. How do we make IP serve development goals as elaborated in the GFoD proposal? We welcome NGOs and civil society groups in this meeting. We would like to give IP a different focus.

* Colombia:
This proceeding shouldn't take away from WIPO's inter-governmental role...

In our view, WIPO and its member states have helped a great deal with IP and development. However, the needs of LDCs continue to grow, and we need to create new models of tech transfer, innovation, and absorption.

The indiscrimnate way that the proposals treat IP obscures the differing strengths of each country in regard to these issues. LDCs goods compete in an unbalanced way with the products of developed countries.

* Australia:
There is no need to create a new forum for these development issues. Instead, we need to examine the long-term goals of WIPO, and ensure that WIPO's remains relevant to member countries' needs.

We endorses partnership program; we have our such work in the Pacific Rim & Asia. We encourage harmonization & prioritization of goals.

* India:
Congratulations to the GFoD for introducing and elaborating on the development agenda. In particular, we support the creation of a research & review office.

Development in WIPO terms means an increase in capacity to protect IP. This is very different from our view, and our proposal fixes this misconception. Proposal fixes this after TRIPS was forced on developing countries in 1994. IP is a legal monopoly, but extracting value for the innovator isn't only goal. Monopoly rights are a special incentive that needs to be carefully callibrated by each country.

In bilateral agreements, the power impalance and TRIPS forces LDCs to fold. No longer are developing countries willing to play this role and have this forced on them. The case for strong IP in developing countries is without economic basis. Instead, these monopolies are rent-seeking arrangements.

IP law enforcement is embedded in all legal systems in LDCs -- it is improper and misguided to imagine that IP-enforcement will trump prosecution of other crimes. Therefore technical assistance is something that should be de-prioritized in favor of impact analysis.

WIPO should not limit itself to the blind expansion of IP protections. Expanding its mission scope will revitalize WIPO.

* Romania:
We favor an assessment of WIPO's current initiatives for development. We support proposals of monitoring impacts of technical assistance in LDCs. Promoting wider participation by NGOs/IGOs is a valuable idea that deserves to be implemented. Would like to give a more institutional power to the permanent committee.

Focus on GFoD: The burden should be on members to propose solutions. However, resources are scanty.

* Spain:
Spain is actively committed to working with WIPO so we can have an effective mechanism for building a development agenda. In this regard, have set up a fund to help iber-american dev. activities. Would also like to set up a stable framework for bilateral agreements.

* Mozambique:
As an LDC, we would like to voice our support for the GFoD. We would like to see more consolidation of existing WIPO efforts.

+_+_+_+
COFFEE BREAK
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* Venezuela:
WIPO should maintain a more balanced position, so the norms established take into account the relationships between countries (social, economic, etc.). Priority should be given to the ability of people to benefit from the scientific progress of IP. Helping small to medium companies and encouraging developing nations to foster tech transfer. We want to move the development dimension to a central pillar of WIPO's work. This is the purpose of the GFoD.

* Russian Federation:
We wish the chair luck in a difficult situation, particularly with the large number of views being expressed. We shouldn't forget how these recommendations affect the IP system and WIPO in particular. We believe that WIPO is working successfully, particularly with regard to the development of systems in ind. countries.

The work at WIPO should be broadened, but should respect the monetary limitations of WIPO. With regard to other entities, we should be wary of creating new bodies to work in development space. Instead, should work on existing entities.

* Sudan:
Differences in education, development & technology lead to a challenging task for this body. We want to reiterate that the US proposal is promising.

* USA:
We align ourselves with the proposal of Italy & group. We are concerned by the GFoD; strong & balanced IP helps facilitate development & tech transfer. In regard to GFoD, we agree with Switzerland -- already do dev work.

The thought that less IP will foster development, however, is as flawed as the notion that IP alone can do so. WIPO framework & treaties don't hinder development or flexibility. We welcome any factual dialogue about this claim.

We would like transparency & a code of conduct. However, we believe that stronger IP does help development.

* Norway:

* Kenya:
The justification of IP is that it promotes creativity, production of wealth, reduction of poverty. Therein lies the need for a development agenda.

The UK statement is very welcome.

As to the US statement, the proposal of a database is promising, but we must pay attention to the technical restrictions of countries in Africa & the dangers of bureaucracy.

* Senegal:
On the US proposal, it should be viewed in light of the digital divide. Efforts to close the divide should be supported.

*Sri Lanka:

* Paraguay:
We endorse GRULAC statement & thank GFoD.

* France:
We endorses Italy & Group B, Luxembourg & EU. We are interested in strengthening existing bodies.

* Turkey:

* Japan:
We welcome US proposal; WIPO doesn't do this alone.

* El Salvador:

* Cuba:
Nations must enjoy flexibility in rights-adoption.

WIPO is the principal authority in giving technical assistance to developing countries; it needed to broaden this perspective.

Furthermore, there is a need to assign appropriate resources for developing countries. Haven't adjusted yet to the high costs of taking on strong IP regimes.

Fully supports GRULAC & GFoD statements.

* Singapore:
We associate ourselves with the Asian group & ASEAN statements. Well-being of country is dependent on IP, but that condition is not sufficient. No need to change WIPO convention, nor to expand duties or agencies. US proposal a positive step.

* Bahrain:
We ask the US to clarify the mechanism it calls for in its paper.

* Argentina:
We would like to refer to other proposals referred to in the meeting. They show the commitment of good will to establish a proper development agenda at WIPO. Three proposals have one common element -- to limit the scope of the DA to technical assistance. Our delegation, of course, rejects this strategy. Our own proposal is concrete, and has specific policy actions.

Our paper presents concrete ways to achieve DA goals. We encourage Member States to make proposals based on the other elements of the Development Agenda.

On the US proposal, we observe that the premise that the partnership would be based from the GFoD perspective, the US focuses on strengthening IPRs. We do NOT share the views expressed in this document. Technical assistance should be tailor-made, appropriate to development needs.

The development dimension is not exhausted in the element contained in the US proposal.

In our view, technical assistance should be based on the real needs and interests of Member States and should be managed and provided in a transparent, neutral fashion. There should be an assessment mechanism such as the kind we have proposed.

To sum up, we want greater effectiveness in the application of technical assistance. Therefore, the tools should not be based on the tools of developed countries, but on the needs of LDCs.

The UK proposal is based on many the recommendations of the UK IPR Commission. The Development Agenda is not limited to technical cooperation. However, it appears that the UK only addresses the technical cooperation aspect. The UK backs a mandate change for WIPO to better address development needs. It also suggests that the PCIPD should be the sole forum for the discussion of these issues.

Patent harmonization initiatives as supported by the UK have been rejected in the previous SCP and the WIPO General Assembly.

Re Technology transfer - consideration should be taken up in WTO. We don't agree.

On Mexican proposal, discussion of UN MD. We deplore the fact that this is a closed discussion. In Mexico's paper, we deplore the fact that Mexico's approach is closed in their mention of the MDGs.

It contains two categorical statements that IP is crucial for development.

We all know that industrialized countries have adopted patent protection only when they achieved a certain level of development.

Another paragraph attempts to minimize our proposal to GA in September. Also attempts to minimize the purport of the resolution on that proposal.

Reference to Casablanca meetings - We don't think that this is a good example of a meeting. This meeting was not open to all Member States.

In sub-paragraph two there is no mention of the TRIPS Agreement which imposed obligations on developing countries.

It's not just developing countries that are affected by this -- both developed and developing countries are affected.

Argentina doesn't see any connection between IP and providing meaningful employment for young people - sub-paragraph 3(8)

Argentina would like to clarify that IPRs in themselves do not acheive stability or balance. IPRs are tools to be utilized in beneficial ways.

We do not share the view that "diffusion" of IP in developing countries should just point to benefits or opportunities. We should not just describe benefits, but also costs. IP rights are not absolute. We need to disseminate information about both the rights of intellectual property rightsholders and the rights of consumers. It is important that training not just promote IP but also promote understanding and respect of third-party rights and protection of the rights.

* Indonesia: We would like to associate ourselves with the statement of Singapore on behalf of ASEAN. WIPO has been instrumental in developing the IP system in Indonesia and using the PCT system.

We appreciate WIPO's technical assistance. Many things need to be done to encourage domestic competition, technology transfer.

Important to remember that IP by itself is not sufficient for development. [...]

* Sweden:
We associate ourselves with the statement of the B Group and we fully support the statement of Luxemborg on behalf of the EU.

As for GFoD -- Sweden shares their concerns that more dev. focus is needed.

* Brazil:

We would like to make some preliminary remarks on the proposals presented by other countries.

The most positive aspect of the American proposals and others is that we have the engagement of three countries. It is very good to see engagement. These proposals will be duly examined in my capital.

However, we are pleased to see certain language in each proposal, such as the recognition that IP is not the only way to enhance development, and that a multi-faceted approach is needed.

The Mexico proposal states, "there is a tendency to associate corruption and bribery as impediments to adequate IP implementation." This seems to be an association with these.

There's the argument, "WIPO is not a core development agency like UNCTAD and UNDP." This isn't disputed by GFoD, but rather we hoped to add greater depth of analysis and expertise. This is a broadening of WIPO's perspective.

The US proposal argues, "the GFoD proposal will create new bodies." But what the GFod actually says is that the development dimension should be incorporated into *all* aspects of WIPO's work programme, including current committees. The US proposal of partnership offices seems like only a match-making initiative between donors and recipients.

The GFoD does not believe that the development dimension can be dealt with solely through technical cooperation. We do not make proposals on technical cooperation in a vacuum but rather, they exist in a wider context. This parternership proposal recognizes the need for change. Partnership office would be novelty within the organization, so perhaps it is at least a recognition of the need for change within WIPO.

However, the US outsources the responsibility of funds and donors. Also, we don't see how the database will make the general thrust of WIPO's work more development-oriented.

The US proposal says that the development dimension should be incorporated into norm-setting. This is something Brazil can agree upon.

As to the Mexico proposal, in beginning of that document, there is a partial and very selective citation of development goals. In fact, the mill. agreement is much broader, and Mexico focuses primarily on the IP-strengthening portion of it. Argentina reminds everyone that the mill. decl. also talks about access to medicine in LCDs.

There was no legitimacy in the Casablanca process which was referred to by the Mexican proposal. The Casablanca process is something we would not like to repeat.

Mexico also supports some kind of valuation system for gauging compliance with int'l IPR standards for countries that are beneficiaries of technical assistance. But we don't know how that would benefit development.

There is the premise in the Mexican document that developing countries don't see the benefits of IP. Predisposition to assuming that the average person in the developing country is an ignorant person. The goal of WIPO, in that formulation, is to "enlighten" those countries to the benefits of IP.

Mexican proposal essentially endorses current global system -- or a less flexible version thereof.

As to the United Kingdom proposal, it appears sympathetic to the cause of development by relying on the recommendations of the UK IPR Commission. There are a few elements of the proposal that might merit certain comment.

Certain flexibilites can be granted to some but not all developing countries -- aspect of graduation -- this is a cause of concern.

However, there are also positive references: the UK proposal states that IP alone can't guarantee that a country will attain its objectives. It also states that individual circumstances must be taken into account when setting policy.

Where the document shows shortcomings is in the solutions section. The solutions are very narrow, and the UK basically reverts to the same kind of proposal put forward in the US committee: reinvigorating and focusing the PCPID.

The UK document also defends patent law harmonization. This is not compatible with the development agenda. As we have seen, the net effect is a rise in the minimum amount of protection around the world. This is not a development-friendly position.

On transfer of technology, UK notes that discussion of transfer of technology and IP should be shifted to the WTO -- so far these discussions at the WTO have not progressed further. Transfer of technology is part of the balance that countries should strive for. This should be fully discussed within WIPO.

Coffee:

IGOs

* African Union:
NEPAD - new economic partnership for economic development

Awards for best African inventors, which has spurred dynamism for IP culture.

* Russian Patent Organization:

* UNCTAD:
First, jointly with ICSTD,
a. have been working to understand the implications of stronger IP
b. assisting countries in implementation & adoption
c. highlight flexibilities in TRIPS
Second, working on open source and bridging digital divide
Third, Oct. 2004 seminar on bridging digital divide.
Fourth, implementing mandate from Sao Paolo by examining policies that are aimed at improving tech transfer, enforcement of IP, protecting genetic resources, etc.

* WHO:
Resolution: time-limited body to make proposals on IP & public health, encourage that bilats take into account the agts for public health in TRIPS
Doha declarations -- important to the goals of public health:

1. accessible & transparent info on patent status of medicines.
2. basic look at patentability of medicines


* ACP - African Caribbean & Pacific States:
Harbors majority of LDCs, & therefore welcomes GFoD proposals

As others note, it is vital to show respect for the needs, expectations & limitations of LDCs

* League of Arab States:
Welcomes assistance from WIPO to examine existing laws and plan new ones to expand IP in Arab states. Has strengthened its relationship with WIPO.

* European Patent Office:
Represent 30 member states, is principal patent-granting arm of EU. While dev. has only recently been introduced into IP agenda, our own countries have already been active here.

* Electronic information for libraries:
Theresa Hackett - libraries foster a market for information - even entertainment goods.

Need objective impact assessments of policies on libraries.

* International Chamber of Commerce:
Small & large businesses worldwide. ICC believes that protection is a necessary condition for development, but must be bolstered by others.

* International Federation of Pharmeceuticals Manufacturers:
Shouldn't think of this as a north-south debate - people in the south benefit well from IP as well.

Focus on India: many Indian companies have already called for more protections.

Should focus on adjusting patent system, not reducing their protection.

* IFPI:
Reps 1,500 musical producers in 78 countries around the world. Even in small countries.

Copyright is beneficial all over the world, for artists of every size.

* International Federation of Filmmakers Associations:
Industry comprised of small and medium companies; we rely on strong IP to survive. We are really the friends of development.

Crisis in Argentina, film in A/V industry. Major economic crisis in 2004, 74 movies were released. Had to strengthen protections to spur protections for creators.

Posted by Donna Wentworth at 09:10 AM

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> http://www.fsfe.org/Members/gerloff/blog/archive/2005/04/12/tuesday_morning_rising_tensions_at_wipo_meeting_on_development_agenda

This Tuesday morning, the situation is rather tense. The extreme positions are held by India on the side of the Friends of Development, and by the USA on the side of those who want to avoid reform. Each side has its helpers. While India simply expresses most clearly the views of the Friends of Development group, the US have mobilised interesting friends such as Sudan to perpetuate their views.

The US show themselves "concerned" with the proposal of the Friends of Development. They accuse the group of wanting to dilute the "intellectual property" system and WIPO's work. In their view, the strict enforcement of patents, copyrights and trademarks is a precondition for development and growth.

India contests this view. It calls for a mainstreaming of development aspects into WIPO's work. Being very clear in tone, the Indian statement described "intellectual property" as a tool for development, not an end in itself. It called the demand for stricter enforcement of patents, copyrights and trademark regulation "unrealistic", as developing countries are grappling with far more severe problems.

Personally, I find it cynical to demand of a developing country that it dedicate scarce resources to the persecution of violations of eg. copyright, while the same country does not have the means to provide its population with a dignified standard of living (dignified not as in "DSL connections for everyone" but rather as in "not starving or dying of easily curable diseases").

This demand - which WIPO has been obedient to so far - turns international and national agencies, which in theory are obliged to pursue public interest, into mere agents of the rights-holding industry's whishes.

Oh, by the way: Why am I putting "intellectual property" in quotes? Because I agree with Richard Stallman in that the term is imprecise to the point of being harmful. You can find Richard's reasoning right here (http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty). The distinctions he elaborates on are substantial to avoiding being labelled as "anti-IP" by conservative groups.

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> http://www.fsfe.org/Members/gerloff/blog/archive/2005/04/12/reading__in_case_youre_interested

Just in case you want to read more than just my getting all worked up about the workings of international politics, there are (at least) two more blogs about this meeting. Both are more news-style and have better background than mine. That of IPWatch seems to be more comprehensive, while the Electronic Frontier Foundation's blog is very thorough (http://eff.org/deeplinks). I recommend checking out both of them. (I'd be glad to have you come back anyway.)

If you want to delve into the original texts, a list of the proposals can be found here (http://www.wipo.int/meetings/en/details.jsp?meeting_id=7522). For getting the hang of the topic, I suggest reading the extreme positions: The US proposal, which has the traditional WIPO line of strict patents, copyrights and trademarks protection (http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=40169); and the Friends of Development proposal, which says many things that NGOs have been saying for years (http://www.wipo.int/edocs/mdocs/mdocs/en/iim_1/iim_1_4.pdf).

We're about to head into another exciting morning of statements by governments and intergovernmental organisations. I'm curios how the climate will be this morning.

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> http://www.fsfe.org/Members/gerloff/blog/archive/2005/04/12/one_more_wipo_blog

Just heard about another blog from the Civil Society side of the WIPO meeting: Brazilian activist Pablo Ortellando, writing for freepress.net, is keeping you informed at www.mediatrademonitor.org.

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> http://www.fsfe.org/Members/gerloff/blog/archive/2005/04/13/what_next_end_of_wipo_meeting

The WIPO secretariat just published the summary of a draft report for this session. It says that member states need more time to "examine" the proposals "indepth". This will take place on a second IIM on 2005-06-20 to 24. Submissions by member states possible until 2005-05-30.

If the fact that another meeting is planned already means that there was no consensus - not exactly surprising after the tense debates -, it also means that the conservative side, namely the USA and the lobby of the rights-holding industry, have not succeeded in pushing the issue into a subcommittee to "disappear" it.

After haggling about expressions for a bit, the debate almost instantly reached a boiling point when Trinidad and Tobago, who are on the progressive side, suggested that more than one additional meeting might be needed to manage the "transition" of WIPO. That comment prompted a sort of shock, as it referred to a massive change in WIPO as an established fact.

Instantly, the debate reached a boiling point and was interrupted. The representatives of the rich countries hectically huddled together: http://www.fsfe.org/Members/gerloff/blogpics/richcountryhuddle_web.jpg (photo of the rich country representatives huddling together in the session room)

Then, the regional coordinators disappeared into a side room to negotiate. The degree of transparency at WIPO is indeed striking.

That the next IIM in June is to last a full five days means that members expect that session to be no less conflictive than the present one. It also means that the conservative side, namely the USA, have not succeeded in pushing the issue into a subcommittee to "disappear" it.

At the moment, the Friends of Development and the United States with their allies are confronting each other at eye level, without either backing down. This might go on for quite a while. The Chairman is already suggesting that a third IIM might be necessary.

The procedure for preparing a report is the usual one. The Chairman, in this case the representative of Paraguay, has great power over what will appear in the final report. He is an interesting figure: While obviously acceptable to both sides of the debate, I've been told that during the beginning of his work with WIPO, he expressed views similar to those now expressed by the Friends of Development.

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> http://www.fsfe.org/Members/gerloff/blog/archive/2005/04/13/wednesday_morning_at_wipo_ngo_statements

"WIPO is not about creativity. It is about protection of intellectual property!" Thus spoke Mr Thomas Giovanetti, sent to the WIPO meeting by the Institute for Policy Innovation, a conservative think-tank in Texas, USA (http://www.ipi.org/). It's good to know that those opposed to reform at WIPO care so deeply about the thing they are claiming to foster.

In keeping with good sportsmanship, I'm posting a link to their latest press release, here. Read it if you want to see what the progressive part of Civil Society is up against (http://www.policynetwork.net/main/press_release.php?pr_id=51).

This is the morning of the NGOs. The session started more than an hour late, as the regional groups of countries were working on their positions ins closed sessions. As yesterday was a conflictive day, this took a while. At the beginning of the session, Mexico - most likely on behalf of the United States - harshly complained about the tone of Brazil's and Argentina's comments on its position. The Argentinian emissary replied that she was just carrying out the orders of her government.

After the last few statements by intergovernmental organisations, the meeting started where it had left off yesterday: With comments by the NGOs. Mostly due to good tactics by progressive, reform-oriented NGOs, but also with a bit of plain old luck, the proponents of WIPO reform got to speak after the various organisations of the rights holders, many of which already made their statements yesterday evening - as tired delegates were out for coffee and a chat.

The progressive NGOs had coordinated their statements well. There was an almost uninterrupted string of about eight interventions by organisations calling for a better taking into account of the needs of developing countries, as well as the need to preserve - and, in many cases, give back - breathing room for creativity.

Georg made a statement on behalf of the Free Software Foundation Europe, which can be found here (http://www.fsfeurope.org/projects/wipo/statement-20050413.en.html). Myself, I had the honor to be asked to read the statement of the FFII (http://lists.essential.org/pipermail/a2k/2005-April/000239.html). The rights-holding industry emissary to my right reacted with grimaces and desperate gestures to what to him must have seemed pure lunacy: The demands for a strengthening of Free Software, and the call to see the system of patents, copyrights and trademarks not as an end in itself, but as a tool for development.

As Ellen Thoen of Medicins Sans Frontiers explained (http://www.msf.org/), the issue of patents on pharmaceuticals is literally a matter of life and death for people in developing countries. Having put forward the example of the Polio vaccine, which was announced almost exactly 50 years ago and, handled as a public domain idea, led to the near eradication

There was also a considerable amount of concerns expressed about the ever stricter enforcement of regulations in developed countries. An example would be the legal protection of Digital Restrictions Management against circumvention, as Volker Grassmuck explained on behalf of the European Digital Rights Initiative (http://www.edri.org/).

By the way: The real conservatives around here believe that there is a "communist conspiracy" to take WIPO away from the rights-holding industry. It's always good to talk to people with such subtle and articulate viewpoints.

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-------- Original Message --------
Subject: [A2k] WIPO's Development Meeting - Day Two (April 12)
Date: Wed, 13 Apr 2005 09:45:56 -0400
From: Sasha Costanza-Chock <[email protected]>
To: [email protected], [email protected]


[From Media Trade Monitor (www.mediatrademonitor.org)]

WIPO's development meeting started with a clear clash of positions opposing developed countries and non-developed countries aligned with the "friends of development" group. The proposal put forward by Brazil and Argentina and backed by 12 other countries (Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela) aims at a deep reform in WIPO's structure so as to take into account public interests and the needs of the non developed countries. The group of friends of development proposal includes allowing for greater flexibility of patent laws, reviewing the role and influence of right holders, allowing greater participation of public interest groups in the organization and increasing the measures for the transfer of technology and access to knowledge to non developed countries. This is the first time that the needs of non developed countries and public interests are seriously addressed in the WIPO.

In day two, developed countries, specially the US and the EU countries, have responded to the friends of development proposal by stating that development issues are already addressed in the WIPO by means of technical assistance programs and the Permanent Committee on Cooperation for Development. Non developed countries have responded to that by highlighting that technical assistance programs are not enough and that development issues should not be dealt in a committee but should be incorporated in the overall structure of the organization [...]

Full text: http://www.mediatrademonitor.org/node/view/195


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Subject: [A2k] SUNS report on WIPO Development meeting
Date: Thu, 14 Apr 2005 13:29:55 +0800
From: "Martin Khor" <[email protected]>
To: <[email protected]>,"ip health listserver" <[email protected]>

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Please see SUNS report on WIPO development agenda meeting

Martin

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SUNS #5780 Thursday 14 April 2005

south-north development monitor SUNS [Email Edition]

twentyfifth year  5780  thursday  14  april  2005

contents

Development: South countries elaborate on their WIPO development agenda (Martin Khor, Geneva)

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Development: South countries elaborate on their WIPO development agenda

Geneva, 13 Apr (Martin Khor*) -- Major developing-country proponents of a comprehensive "Development Agenda" in the World Intellectual Property Organisation (WIPO) further elaborated on their positions and critically commented on alternative proposals put forward by other countries which they said had a restrictive view of the proposed Development Agenda.

On the second day of the WIPO meeting on a Development Agenda for WIPO, being held here on 11-13 April, Brazil and Argentina (which coordinate the 14-member Group of Friends of Development or FOD that have submitted two papers), made extensive comments on the proposals of the United States, United Kingdom and Mexico.

Another highlight was a presentation by India, another major proponent of the Development Agenda.  Several other developing countries also spoke in support of the FOD proposals. Also, several developed countries advocated a restrictive view (limiting a development agenda to a strengthened technical assistance programme) while a number of developing countries expressed support for the present work of WIPO (indicating that there is no need for any significant change).

The inter-sessional intergovernmental meeting (IIM) had been mandated by the WIPO General Assembly last October as a result of an initiative for a Development Agenda launched by the 14 members of the FOD. After a series of IIMs, a report is to be submitted to the next General Assembly for consideration of further action, if any.

India, which is not a member of the FOD, but seen by many as a major advocate of the Development Agenda, said this is a special day for WIPO as it is the first time that a Development Agenda had been taken up in the organization.  India had high expectations that the IIM meetings would lead to mainstreaming the development dimension into all areas of WIPO's work and activities.

Congratulating the FOD for their two proposals, India said it fully supported the proposals, in particular the establishment of a WIPO evaluation and research office.

India said the issues covered in the proposals cover the most important areas and the FOD paper is an excellent starting point for establishing a Development Agenda, which would strengthen WIPO and ensure that its governance structure is more inclusive, transparent, democratic and that it is truly a member-driven organisation.

India said that much more needs to be done in WIPO to meet development challenges. In WIPO's terminology, "development" means increasing a developing country's capacity to provide protection to IPR owners.  This is quite the opposite of what developing countries understand when they refer to the 'development dimension.'  It added that the FOD paper corrects this misconception, that the development dimension means technical assistance.

India said that the real development imperative is ensuring that the interest of IP owners is not secured at the expense of the users of IP, of consumers at large and of public policy in general.  The proposal therefore seeks to incorporate into international IP law and practice what developing countries have been demanding since the TRIPS agreement was foisted on them in 1994.

According to India, the primary rationale for IP protection is to promote societal development by encouraging technological innovation.  The legal monopoly granted to IP owners is an exceptional departure from the general principle of competitive markets as a guarantee to secure society's interest. The rationale for the exception is not that monopoly profits by the innovator is good for society, but that properly controlled, such a monopoly, by providing incentives for innovation, might produce sufficient benefits for society to compensate for the loss to consumers.

Monopoly rights then is a special incentive that needs to be carefully calibrated by each country, in light if its own circumstances and taking into account the costs and benefits of such protection.

Should the rationale for a monopoly be absent, as in the case of cross-border rights involving developed and developing countries, the only justification for granting a monopoly is a contractual obligation, such as TRIPS, and nothing more, said India. In such a situation, it makes little sense for one party, especially the weaker party, to agree to assume greater obligations than he is contractually bound to accept.

This is what developed countries have sought to do so far in the context of WIPO, said India, adding:  "The message of the Development Agenda is clear: no longer are developing countries prepared to accept this approach, or continuation of the status quo."

Even in developed countries, where monopoly profits of IP holders are recycled within the economy, there is debate on equity and fairness of such protection and questions about its claimed social benefit, said India.

"Given the huge North-South asymmetry, absence of mandatory cross-border resource transfers or welfare payment, and absence of domestic recycling of monopoly profits of foreign IP rights holders, the case for strong IP protection in developing countries is without any economic basis.  Harmonisation of IP laws across countries with asymmetric distribution of IP assets is clearly intended to serve the interest of rent seekers in developed countries rather than that of the public in developing countries."

Neither IP protection nor harmonization of IP laws leading to higher protection standards in all countries can be an end in itself.  For developing countries to benefit from providing IP protection to developed countries' IP holders, there should be obligations by  developed countries to transfer technology to developing countries. Absent an obligation to transfer technology, asymmetric IP rent flows would be a permanent feature and benefits of IP protection would forever elude consumers in developing countries.

India said the FOD proposal had pointed out that technology transfer should be a basic objective of the global IP system and WIPO has the responsibility of taking measures for this as part of the development agenda.

It added that technical assistance (TA) should be directed towards impact assessment and enabling developing counties to use the space within IP treaties.  The current emphasis of TA on implementation and enforcement  issues is misplaced. It is unrealistic and undesirable that the enforcement of IP laws will be privileged over enforcement of other laws in the country. Therefore, WIPO's current focus in TA on enforcement should shift to other areas such as development impact assessment.

India said the developed countries and WIPO should acknowledge that IP protection is a policy instrument that needs to be used carefully in developing countries. While the claimed benefits of strong IP are a matter of debate, it entails substantial real and immediate costs for developing countries.  Each country needs flexibility so that the cost of IP protection does not outweigh the benefits.  WIPO should recognize this and formulate its work programme accordingly and not limit its activities to the blind promotion of increasingly higher levels of IP protection.

WIPO as a UN agency can make a major impact by incorporating the development dimension into its mission in letter and spirit so that it is reflected in all its instruments.  This would revitalize WIPO as an organization sensitive to integrating developing countries' concerns in all areas of its work, concluded India.

Other developing countries speaking in support of the Development Agenda and broadly of the FOD proposal included Kenya, Trinidad and Tobago, Venezuela and Morocco.

Trinidad and Tobago said in recent years it had realized that a properly staffed IP office will not automatically guarantee that IP will succeed in encouraging technology transfer and serve as a general tool of economic transformation.  It associated itself with many aspects of the FOD proposal, although it had reservations on a few specifics.

Kenya said, in support of the FOD proposal, that the initiative for establishment of the Development Agenda is long overdue. Of significance to Kenya is the protection of traditional knowledge and genetic resources, access to medicines, and expansion of national policy space and flexibility.  The core of the Development Agenda is to ensure an inbuilt enhancing of national policy space, embodying the public interest. The need to treat countries with different economic levels differently is paramount.

Also supporting the FOD proposal, Venezuela said developed countries should undertake obligations to ensure that the companies who have protected IP carry out technology transfer. IP should be at the service of development and not be an end in itself.  Development had to become a "fundamental pillar" of WIPO. The development dimension is not only about TA.

Some developing countries including Singapore and Sudan supported the present work of WIPO, implying that change was not needed.  Singapore said the development dimension has always been part of WIPO's work.  It did not see the need to change the WIPO Convention or integrate new procedures or bodies. It was open to suggestions for a development impact assessment of WIPO activities. It also saw merit in the US proposal.

Sudan said it valued a WIPO development programme to develop IP culture and raise standards in countries. The WIPO programs are not imposed but made on request. It did not support setting up other instruments and bodies under the Development Agenda.

Argentina noted that the other 3 proposals (from the US, UK and Mexico) share one specific feature - the intention to limit the Development Agenda (DA) to a single element, i.e. technical cooperation.  As a proponent of the DA, Argentina did not share this view, which is very limited. It requested the countries that only focused on TA to also make proposals on the many other aspects of the FOD paper.

Argentina said that after the current meeting, it would like substantive work to be done based on the FOD proposal.  The other proposals could contribute but could in no way replace the FOD proposal.

On the US proposal, Argentina said that it was based on strengthening IP protection, and it did not share the views of the paper.  The development dimension is not adequately covered in the US paper, which focused only on technical assistance based on the use of IPs in developing countries.  It also criticized the paper's limited approach to TA.

Argentina said the UK proposal had merit in that it was not limited to TA and contained some good points arising from the UK-organised Independent Commission on IPRs.  However, the UK was only ready to seek solutions through TA and thus distances itself from the FOD solutions.   Although the UK endorses the Commission's view that the WIPO mandate should be changed, the UK indicates that it is uncertain if the mandate should change.

Argentina added that the UK paper recognizes the weaknesses in WIPO's TA but only suggests that discussions be placed in WIPO's Permanent Committee on Cooperation for Development (PCIPD). It said the UK paper also dealt with harmonization of patent laws, which reiterated the trilateral position that is detrimental to developing countries.  The patent treaty proposed is aimed at increasing protection levels and this is detrimental to national flexibilities and concerns.  This proposal had been rejected twice last year at the patents committee and General Assembly. Argentina also did not agree with the UK point that technology transfer is not in the purview of WIPO.

On the Mexico proposal, Argentina said it deplored the paper's closed approach. It said the paper stated that IP is essential to development of humanity but many industrial countries had adopted patent protection quite recently and only after establishing their industrial base.

Referring to Mexico's positive reference to the Casablanca meeting (convened in February by the WIPO Director General), Argentina said that meeting is not the best example of how WIPO meetings should be held, as it did not have participation of all members.  The meeting did not take up developing countries' issues but instead dealt with developed countries' issues in accordance with their needs in the patent treaty being negotiated.  Not all countries were invited.  It is incorrect to refer to such meetings which should not be held in future.

Argentina also criticised other aspects of the Mexican paper, including an assessment of levels of compliance of rules.   Argentina concluded that IP is only a tool that can be beneficial depending on the use made of it.  It thus did not agree with the dissemination of IP which only pointed to its benefit, as their costs should also be discussed.

Brazil welcomed the other proposals as it showed the countries' willingness to engage.

Referring to the US paper, Brazil agreed that WIPO is not a development agency like UNDP and the FOD only aims at making WIPO cognizant of development issues and broaden its perspective in a fashion that contributes to development.

While the US is concerned about the creation of new bodies, the FOD does not propose new bodies but advocates that development should be in all existing bodies and all discussions.  The US paper understands that development is the most daunting challenge, which Brazil agreed with, but to meet this challenge, changes are needed in the IP system and to accommodate differences in development levels and contexts.

Brazil said the US's partnership proposal seems aimed at matchmaking donors and applicants for TA.  The FOD also touches on TA but the development dimension cannot be dealt with only through TA.  The FOD did not make suggestions on TA in a vacuum but in a wider context that includes changes in other areas.

It added that the rationale of the US proposal leads to a solution that runs counter to the FOD proposals, as it would out-source WIPO's function and submit TA to greater influence of rights holders who have most resources to fund TA on that basis.  It did not see how this could make TA more neutral and development friendly.

On the Mexican proposal, Brazil also criticised its reference to the Casablanca meeting whose conclusions were not supported by Brazil.  Countries in the FOD and others had also questioned the legitimacy of the Casablanca meeting, said Brazil. "This is not a basis to resume negotiations in WIPO.  The way that meeting was conducted is an example of how we do not want meetings to be conducted anymore".

Brazil viewed with concern the Mexican position that WIPO's TA activities should include looking at the level of compliance and enforcement of rules by beneficiary countries. This would raise standards and make life more difficult for developing countries, which require flexibilities. Brazil also took issue with the Mexican paper's reference to surcharge on patents on traditional knowledge, that developing countries don't see the benefits of IP, as the average person in developing countries is unaware and should be educated.

Brazil said the Mexican paper can agree to a development initiative only as long as there is no interference with the existing framework of the international IP system. This seems to be a defense of the status quo and that is not what we intend to achieve. The Development Agenda would like to change the status quo and strengthen WIPO in a new direction, said Brazil.  In contrast, the Mexico proposal defends the global IP system as it exists or even a less flexible version of this system as WIPO would be given a role to monitor countries' compliance and making compliance a condition for TA.

On the UK paper, Brazil said it shows an effort to sympathise with development concerns and makes welcome use of the IPR Commission report, including statements such as that individual countries' circumstances have to be taken into account. However, while the analysis is solidly backed up, the solutions are narrow and Brazil was frustrated by that.  The UK reverts to the same solution as the US, with all the problems to be taken up by the WIPO committee on development cooperation.

Brazil also took issue with the UK advocacy for global harmonization of IP standards, as it believed the harmonization process in WIPO will lead to higher standards and will reduce existing flexibilities that are still there. This is not a development-friendly position. On the UK proposal that technology transfer not be dealt with by WIPO but instead by the WTO working group on technology transfer, Brazil said that group's work had not progressed very much and WIPO should take up this issue.

Several developed countries (including the US, Japan, Australia, France) spoke, all supporting the position of Group B (comprising developed countries).  The US said the FOD proposal was of concern as it implies that WIPO has disregarded development concerns and that strong IP protection is detrimental to global development goals. It disagreed, saying the experiences of many developing countries represented attest that IP has facilitated their development.

The US said the thought that weakening IP will further development appears to be as flawed as the idea that IP alone can bring about development.  WIPO treaties include flexibilities, the greatest being that the treaties are not mandatory. The US is interested to learn what lack of flexibilities exist in WIPO treaties or how they limit policy space or hinder development and welcomed a factual dialogue on this point.

The US asserted that WIPO has made and should continue to make its most important contribution to development precisely by deepening and expanding, rather than by diluting, its IP expertise.

Japan welcomed the US proposal on a database as it would enable an entire picture to be built.  It would be useful to listen to developing countries' evaluation of WIPO activities. It also endorsed the UK paper's suggestion to proceed with harmonization of patent laws in a small package.

Norway, while supporting the Group B position, took a more nuanced stance. Norway said the proposals are of great importance and a good basis, the MDGs are important for WIPO's broader work and it was happy to see a demand-driven approach.  There is room for better performance by WIPO and in order to make informed choices on proper implementation of IP, assessments should be undertaken. Sweden said different levels of development should be taken into account in WIPO's norm setting activities. It welcomed the US, UK and Mexican proposals.

Turkey said the proposals were useful, especially that of the FOD, although it was vague in some parts.  It suggested forming a working group to study the issue in detail.

Statements were also presented by international agencies (including the WHO and UNCTAD) and intergovernmental organizations (including the ACP Group and the African Union).

The meeting continued on Wednesday, with statements presented by NGOs and industry groups.  A discussion on future work is scheduled to take place Wednesday afternoon.  A draft of the Chairman's summary of the meeting was being discussed informally by member states. It is expected to be adopted late Wednesday afternoon.

(* With inputs from Sangeeta Shashikant.)

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