IP Disputes in Medicine

Friday, February 16, 2007

Debate on WIPO Development Agenda

by Malini Aisola

On February 9, 2007 KEI hosted a brownbag lunch discussion to talk about the WIPO Development Agenda (DA). The next round of negotiations will be held in Geneva the week of February 19-23. Invited to speak were several members of the US delegation, including Paul Salmon (USPTO), Bob Watts (US Department of State), Michael Shapiro (USPTO) and Marla Poor (Library of Congress); and DC WIPO representative, Suzanne Stoll. Thiru Balasubramaniam and Jamie Love from KEI also spoke, followed by a lively discussion between the audience and panel members.

KEI’s Geneva representative, Thiru Balasubramaniam presented some background on the DA, lending context to the discussions that followed. In 2004, the WIPO General Assembly agreed to consider the proposal to incorporate development into the core of WIPO’s activities in an effort to restore balance within existing IP policies. The original DA proposal supported by 14 countries called for the:

a. reappraisal of WIPO’s norm setting activities,
b. facilitation of technology transfer,
c. evaluation of intellectual property enforcement, and
d. promotion of development-oriented technical co-operation and assistance.

Subsequently, several more proposals were tabled by member countries culminating in a total of 111 submissions. No consensus was reached at the second inter-sessional intergovernmental meetings convened to examine the proposals. Further, at the General Assembly in September-October 2006, the Kyrgyz Republic introduced a proposal containing 40 recommendations (Doc PCDA/2/3) that were identical to the Chair’s conclusions that had been rejected at the second session. Following this, it was decided to devote the upcoming third session to the discussion of these 40 proposals grouped together under Annex A. These proposals are generally considered to be less controversial as they are relatively well accepted by members.

The remaining 71 proposals which include the core recommendations put forth by the Friends of Development constitute Annex B. Annex B is scheduled to be discussed at the fourth session in June.

Proposals in each Annex were grouped under six common clusters: 1) technical assistance and capacity building; 2) norm setting, flexibilities, public policy and public domain; 3) technology transfer, information and communication technology (ICT) and access to knowledge; 4) assessments, evaluation and impact studies; 5) institutional matters including mandate and governance and 6) other issues. According to Thiru, this division of proposals under vertical silos is viewed critically by some because of the separation of the proposals from their original contexts.

Speaking next as head of the US delegation, Paul Salmon confirmed that the US has indicated its position on all 111 proposals and has signaled its support on many of those included in Annex A.

Paul expressed optimism about the third session of the PCDA, saying that after two and a half years of discussions it presented a good opportunity to bring forward changes. Salmon suggested that the forum was important for achieving results with regards to proposals enjoying emerging consensus but at the same time cautioned about the slow pace such negotiations can take. The key is to be constructive about reaching consensus while also maintaining realistic expectations, he said.

Jamie Love of KEI commented that there had been progress on some issues, as reflected in some of the 40 proposals in Annex A that had received support from the US and the EC. He noted, however, that all but one of the Annex A proposals were those that had received support from either the US or EC, and that when the Annex was first proposed in 2006 at an earlier meeting, it was seen as an insulting and very minimal response to the Friends of Development proposals. Many of the more far reaching reform proposals were at first ignored, and now have been relegated to the Annex B, which will be discussed in June.

That said, the February meeting will be useful, as WIPO will agree that issues concerning the protection of the public domain will be part of WIPO's mission -- an issue that had been disputed in a 2003 debate over a WIPO meeting on open collaborative models for knowledge goods, and that WIPO will be doing more on the control of anticompetitive practices, Love said.

There was debate back and forth between Rob Weissman (Essential Action), Paul Salmon and Jamie Love about the degree to which WIPO has helped countries protect the poor on issues concerning flexibilities of the TRIPS. Paul Salmon was supportive of WIPO in this respect, while Rob and Jamie were more critical. There was also discussion of the need for more realism when it comes to enforcement. Developing countries would be more willing to enforce laws if the laws addressed obvious issues such as affordability of patented or copyrighted goods. Liberal limitations and exceptions to rights would in fact promote more respect for laws, in countries where incomes were low. Rob Weissman of Essential Action urged the US to play a stronger role in supporting improvements to WIPO’s technical assistance to countries on the use of flexibilities and competition policy.

There was a general discussion about the degree to which the US and European governments should pursue (a) very high levels of intellectual property protection, or (b) a more nuanced and balanced policy. According to Jamie, Germany was an example of a country that was pushing for very strong intellectual property norms at WIPO, at a time when many were questioning the wisdom of such an approach. The high rates of patenting in China and Korea suggest that 2017 might look a lot different from 2007, and some countries may be encouraged to embrace lower standards of patent quality (like the US), and use patents as protectionist measures. Neither the EC nor the United States, nor for that matter, any country, would benefit from such a race to the bottom, in the longer run.

Brad Biddle (Intel Corporation) also pointed out that as higher standards of IPR are implemented, corresponding limitations and exceptions will also have to be created. Giving the example of broadcasting, he explained that the economic value in creating these exceptions is well recognized by the industry. Matt Schruers of CCIA also advocated for finding a balance between creators’ rights and public access, noting that there was increasing consensus between creators and society on these issues.

Much of the wealth created in the United States in recent years has come from methods of sharing and using knowledge resources, rather than restrictive IPR regimes, Jamie said. Companies like Google, which are providing valuable services for the entire world and large profits for themselves, cannot operate as global services without some assurance that their core activities are legal. The EU experience with database protection has hurt the EU's domestic tech industry, not helped it, he said. Big corporations like Microsoft and Intel are now in favor of "patent reform" because they are the targets of patent litigation. The United States is now the largest purchaser of AIDS drugs in developing countries. There are indeed endless areas where US and European taxpayers are being asked to pay for drug purchases in developing countries. This is expensive and not sustainable unless you can deal with pricing abuses. The US was urged to abandon the strategy of framing issues in WIPO as "North South," and to use WIPO for serious debates about intellectual property norms and practices.

Paul Uhlir of the National Academy of Sciences also suggested several areas in which the US could take the lead in the international arena, including: promoting such features of its domestic IP policy as the low protection of federal government information that is placed in the public domain; the low statutory protection of databases; transparency in the national policy making and legislative processes; and the use of permissive licensing mechanisms such as the Creative Commons templates for providing voluntary, flexible private law alternatives to statutory IP law. [This paragraph edited Feb 19, 2007].

The US delegation provided answers to the many questions raised such as by Miriam Nisbet (American Library Association) about the PCDA process and Susan Sell (George Washington University) about the extent to which funding sources might constrain WIPO’s activities and policy. Following the open discussion among representatives of the government, academia, industry and consumer groups, many participants expressed interest in following the development agenda process. More updates from the next PCDA to come soon.


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