PROPOSAL
TO ESTABLISH A DEVELOPMENT AGENDA
FOR
THE WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO):
An
Elaboration of Issues Raised in Document WO/GA/31/11
Submission by
the Group of Friends of Development
I. INTRODUCTION: PROMOTING
DEVELOPMENT AND ACCESS TO KNOWLEDGE FOR ALL
During the 31st Session of
the WIPO General Assembly (September 27 to October 5, 2004), the delegations of
Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran,
Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela co-sponsored a
proposal to establish a “Development Agenda” for the World Intellectual
Property Organization (tabled as Document WO/GA/31/11). The present submission by the Group of Friends of Development
seeks further to elaborate four different sections of document WO/GA/31/11,
with a view to incorporating the development dimension into WIPO´s work. The
four issues dealt with in this new submission are, namely: WIPO’s mandate and
governance; norm-setting; technical cooperation; and transfer of technology.
This document is intended only as a further contribution to the debate on the
establishment of a “development agenda” for WIPO. It is not meant to be
exhaustive of all possible initiatives that may be undertaken and issues that
may be addressed under that aegis. The Friends of Development reserve the right
to make additional contributions to the debate as discussions continue. Future
documents may further elaborate the proposals contained in the present
submission, or address new issues.
2. The basic concern of the Group of Friends
of Development is to ensure that WIPO activities and intellectual property
discussions are driven towards development-oriented results. As pointed out by
document WO/GA/31/11, several international organizations have recognized that
much more needs to be done to reach effective results that meet the challenges
of development. Leading this process, the United Nations adopted the Millennium
Development Goals, which established a firm commitment by the international
community to address the significant problems that affect developing countries
and LDCs. The Programme of Action for
the Least Developed Countries for the Decade 2001‑2010, the Monterey
Consensus, the Johannesburg Declaration on Sustainable Development and the Plan
of Implementation agreed at the World Summit on Sustainable Development, the
Declaration of Principles and the Plan of Action of the first phase of the
World Summit on the Information Society, and the Sao Paulo Consensus adopted at
UNCTAD XI, have all placed development at the heart of their concerns and
actions. This has also been the case in
the context of the current Doha round of multilateral trade negotiations of the
World Trade Organization (the “Doha Development Agenda”), which was launched at
the WTO’s 4th Ministerial Conference, in November 2001.
3. The aforementioned examples point to a
trend towards adopting development-oriented agendas in international fora, in
response to the widespread perception that the international debate must tackle
this issue. The proposal to establish a “Development Agenda” for WIPO submits
that the Organization’s work should reflect this trend, by bringing the
development dimension into all its discussions and activities. The basic
proposal of the “Development Agenda” is that development should be a central
dimension in any negotiation involving IP systems.
4. Experience demonstrates that WIPO has
concentrated its efforts in the diffusion of standardized approaches to IP
policies that assume, from an uncritical standpoint, that development follows
suit as intellectual property rights protection is strengthened. Current
worldwide debate questioning the appropriateness of such an approach has not
been reflected in WIPO’s work. Rather, discussions in WIPO have overlooked the
importance of a systematic assessment of the implications of increased and
standardized IPR protection in terms of access to and diffusion of science,
technology and related knowledge and know-how, especially for LDCs and
developing countries.
5. The proposal for the establishment of a
“Development Agenda” is also based on the premise that development concerns
should be given emphasis in WIPO activities, so that the Organization may
comply with its UN mandate. One of the intentions of the “Development Agenda”,
therefore, is to promote a deeper reflection on the development implications of
current and new approaches to different IP policy choices and international
norm setting, as well as a more accurate and pervasive discussion on the consequences
of their adoption by countries at different stages of social, economic and
technological development. It is important to promote a critical examination of
the implications for developing countries of the adoption of increased IPR
protection, rather than seek to approach this highly controversial issue as if
it were governed by absolute truths, solely under the one dimensional
perspective of the private rights holders, ignoring the broader public
interest.
6. Accordingly, while the “Development
Agenda” initiative recognizes that intellectual property is relevant to the
process of building technological capacity, it also draws attention to the
importance of public interest flexibilities provided for by the IP system
itself and the role these flexibilities might play in fostering
development-oriented policies. Although a globalized economy poses overwhelming
challenges for policy-making, such as the tendency towards uniformity, it is
important to bear in mind the serious disparities that continue to exist in the
levels of human, economic and technological development among different States.
States at differing levels of development face different challenges and have
different needs. This fact should always be borne in mind in the realm of
intellectual property policy-making.
7. From such a perspective, as pointed out
in document WO/GA/31/11, intellectual property should be regarded not as an end
in itself, but as a means for promoting the public interest, innovation, and
access to science, technology and the promotion of diverse national creative
industries - in order to ensure material progress and welfare in the long run.
Promotion of intellectual property protection alone is not sufficient if
unaccompanied by policies that respond to the specific development needs of
each country.
8. As WIPO holds an important position in
the field of IP issues, the Organization is expected to be guided, in all its
activities, by this wider perspective in which IPRs are regarded as instruments
that could facilitate social and economic gains for all countries, provided
that different national circumstances are properly taken into account.
9. It is incumbent upon WIPO, therefore, to
effectively incorporate development promotion as one of its main goals, as
already foreseen by the UN-WIPO Agreement. This brings to the forefront, inter alia, the importance of: weighing
the costs and benefits generated by IPR protection; safeguarding public
interest flexibilities in both ongoing and future negotiations taking place in
the Organization; addressing the issue of technical cooperation from a broader
perspective – in which countries are helped to frame IP legislation that
responds to their specific needs; guaranteeing wider transparency and
participation in the discussions; and ensuring that the IP system effectively
fosters innovation and technological development. The balance between the
public interest and those of rights holders, as well as the balance between the
interests of the scientific community and those of the technology and IP based
industries should be struck not only in developed countries but also within the
specific contexts and conditions of each developing country that is a member of
WIPO. This is why IP agreements and minimum international standards should be
fine-tuned to address different levels of development of member countries,
their respective social needs and industrial challenges as well as their
capacity to participate in and benefit from the IP system through generation of
patents and IPs resulting from the efforts of their own national communities
and industries. These concerns are of a cross-cutting nature, since they relate
to all WIPO activities. This highlights the importance of dealing with them in
all WIPO fora.
10. The Friends of Development attach importance
to the role of intellectual property in the path towards development. In order
to ensure the credibility of the IP system, however, more has to be done in
order to ensure that peoples all over the world have access to knowledge and
technological development. We believe WIPO could have a new role as a relevant
actor in this context if it incorporates the development dimension into its
work.
II. ELEMENTS FOR THE REVIEW
OF THE MANDATE AND GOVERNANCE OF WIPO
11. Document
WO/GA/31/11 noted that WIPO as a
member of the United Nations (U.N.) family should be guided by the development
goals that the U.N has set for itself, such as the Millennium Development Goals
(MDGs), and that development concerns should be fully incorporated into all
WIPO programmes and activities. In the proposal, the co-sponsors further
pointed out that WIPO’s role is not to be limited to the promotion of
intellectual property protection.
12. The proposal that WIPO should be guided by the
broader goals of the UN system is a response to and reflects recent
developments in many different international fora, where it has been recognized
that intellectual property protection has serious cross-cutting implications
for several different areas of public policy, including education, public health,
nutrition, the environment, cultural diversity and the promotion of science and
technological development more generally. In this regard, the adoption of the
Doha Declaration on the TRIPS Agreement and Public Health at the 4th
Ministerial Conference of the World Trade Organization (WTO) represented a
crucial milestone, whereupon the international community recognized that TRIPS,
as an international instrument for the protection of intellectual property,
should always operate in a manner supportive of the public health objectives of
all countries. Relevant developments have taken place in other international
fora as well. For example, the “Sao Paulo Consensus”, adopted by UNCTAD XI,
enshrined the concept of “policy space” in the context of economic policy-making,
underscoring its relevance to the pursuit of the development objectives of
developing countries and LDCs.
13. Now more than ever before, it has become clear that
in the increasingly global, knowledge economy, access to knowledge and technology
is indispensable for social and economic development and for the well-being of
peoples in all countries. Consequently, any policies and international
norm-setting, particularly in relation to intellectual property protection,
which may have an impact on access to knowledge and technological development,
pose a serious development concern for developing countries and LDCs.
II.1. WIPO’s U.N. Mandate: addressing possible
Impediments to its Effective Implementation
14. Given the cross-cutting implications of intellectual
property protection, in particular for developing countries and LDCs, as well
as consumers of new knowledge and technology in both the North and the South,
discussions on intellectual property should not and cannot be pursued in a vacuum.
In effect, because IP protection has an impact on different areas of public
policy of such vital importance to social and cultural development, immediate
steps should be taken to ensure the full implementation and monitoring of
WIPO’s U.N. mandate, by clarifying the mandate of the Organization and by
strengthening its Member-based governance structures. It is important to
examine and address, in particular, WIPO’s development mandate as a U.N.
agency, as well as specific practical measures that need to be taken, in terms
of governance, to ensure that the development dimension becomes an integral
element of WIPO’s work programme in all areas of activity.
15. WIPO was
established by the 1967 WIPO Convention as an independent international
organisation succeeding the Bureaux
Internationaux reunis pour la protection de la propriete intellectuelle (BIRPI)
to “promote the protection of intellectual property” and “ensure administrative
cooperation among the Unions”. This objective was, however, explicitly clarified
by the 1974 Agreement between the United Nations and WIPO, which established
WIPO as a specialized agency of the U.N. family with the responsibility for:
[T]aking appropriate action in
accordance with its basic instruments, treaties and agreements administered by
it, inter alia, for promoting
creative intellectual activity and for facilitating the transfer of technology
related to industrial property to the developing countries in order to
accelerate economic, social and cultural development, subject to the competence
and responsibilities of the United Nations and its organs,…[1]
16. 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. WIPO, moreover, must be open to, and
actively consider, alternative non-intellectual property-type systems for
fostering creativity, innovation and the transfer of technology, while
recognizing the benefits and costs of each system. Higher standards of
protection should be undertaken only when it is clearly necessary and
appropriate for the promotion of creativity and the transfer of technology, and
where the benefits outweigh the costs of protection. Indeed, paragraph 2 of the
Preamble to the WIPO Convention, as formulated in 1967, recognized that
intellectual property is not an end in itself but should only be used if it
promotes creativity. As a matter of fact, given the cross-cutting implications
of IP protection, as pointed out above, any attempts to pursue upward
harmonization of intellectual property protection, without proper consideration
of the potential costs of such initiatives for developing countries and LDCs,
as well as for consumers and the public at large, would be at odds with WIPO’s
U.N. mandate.
17. Furthermore,
WIPO should undertake its activities, especially legal-technical and technical
assistance with a development focus, based on the 1995 Agreement between WIPO
and the World Trade Organization (WTO) with respect to the implementation of
the TRIPS Agreement. Under Article 4 of that Agreement, the International
Bureau of WIPO and the WTO Secretariat are required to cooperate in matters of
legal-technical and technical assistance “so as to maximize the usefulness of
those activities”. In the context of TRIPS, legal-technical and technical
assistance activities have to ensure that the developing and least developed
countries are able to implement the pro-development provisions of the TRIPS
Agreement, for example, Articles 7, 8, 30, 31 and 40, in addition to subsequent
pro-development decisions, such as the Doha Declaration on the TRIPS Agreement
and Public Health.
18. In spite
of the terms of the 1974 Agreement between the U.N. and WIPO, ambiguities and
misunderstandings regarding WIPO’s mandate have, for various reasons, persisted over the years. The 1967
WIPO Convention has often been invoked by some to justify attempts to launch
negotiations on the upward harmonization of intellectual property laws without
a proper, comprehensive and fair consideration of the potential implications
and costs of such initiatives for developing countries and LDCs. At other
times, some have suggested that the WIPO Convention prohibits the Organization
from examining issues such as the control of anticompetitive practices,
transfer of technology, limitations and exceptions to intellectual property
rights and the protection and enhancement of the public domain. All such
restrictive interpretations of WIPO’s mandate would seem to run counter to
WIPO’s role and mandate as a U.N. agency. In effect, given the clear
cross-cutting implications of IP for vital areas of public policy, in
particular for developing countries and LDCs, such narrow interpretations of
WIPO’s mandate and mission are not desirable.
19. Several
factors may have impeded effective implementation of the Organization’s
development mandate in the past. Frequently, there has appeared to be a
misconception that the development dimension of intellectual property is the
same thing as technical assistance and that technical assistance should be
provided as a means for enhancing enforcement measures in receiving countries.
At other times, the Organization may have lacked clear guidelines from the
Member States on how development should be placed at the core of WIPO
programmes and activities. This should be remedied by a debate on the subject
in the next meeting concerning the Development Agenda. It would be particularly
important to mainstream the development dimension into all of WIPO’s
substantive and technical assistance activities and debates, including the way
in which the Organization deals with “enforcement” issues. The objective would
be to safeguard in all negotiations the development oriented principles and
flexibilities contained in existing Agreements, such as Article 1 of TRIPS,
which gives members the freedom to “determine the appropriate method of
implementing the provisions of this [the] Agreement within their own legal
system and practices”, as well as Article 41.5 which establishes in regards of
enforcement that nothing creates “any obligation to put in place a judicial
system for the enforcement of intellectual property rights distinct from that
for the enforcement of law in general”. In that light, it is also important to
maintain the mandate of WIPO's Advisory Committee on Enforcement within the
limits of a forum for exchange of information.
II.1 (a) Bringing the WIPO Convention in Line with the Organization’s
U.N. Mandate
20. As pointed
out in Document WO/GA/31/11, one could make WIPO’s mandate clearer by means of
an amendment to the 1967 WIPO Agreement that would unequivocally inscribe the
“development dimension” as an essential element of the Organization’s work
program. One option is to amend the Convention as indicated in the Appendix to
document WO/GA/31/11. The timing and convenience of initiating such
negotiations should be properly considered by by all Member States in the IIM
on the Development Agenda.
II.1(b) The Misconception that the Development Dimension Means Technical
Assistance
21. The
proposal on a Development Agenda for WIPO is broad and horizontal in nature and
strives to address WIPO’s work in all its dimensions. In particular, it is
critical to clarify that the development dimension of intellectual property is NOT the same thing as technical
assistance. While technical assistance has a role to play in ensuring that the
implementation of intellectual property rules is development-sensitive, the
development dimension in intellectual property means that, inter alia:
(a) With
respect to norm-setting relating to intellectual property, new subjects and
areas for such norm-setting should be identified based on clearly defined
principles and guidelines and on an assessment of their development impact.
Differing levels of technological, economic and social development should be
recognized, and flexibilities and “policy space” for the pursuit of public
policy goals should be safeguarded.
(b) WIPO
should be open to examining non-intellectual property-type and/or
non-exclusionary systems for fostering creativity, innovation and the transfer
of technology, for example, open collaborative models for research, open and free
software development, and compensatory liability systems and the development of
technology for the public good, while recognizing the benefits and costs of
each system.
(c) Specific
measures should be undertaken to facilitate the transfer of technology to
developing countries and the contribution of such technology transfer to their
economic, social and cultural development should be continuously measured,
monitored and evaluated.
(d) Technical
assistance should be demand-driven in the sense that it corresponds to the
needs and global political objectives of developing and least developed
countries, taking also into account the legitimate interests of various
stakeholders and not only those of rightholders. Furthermore, the design,
delivery and evaluation of technical assistance should be based on clear
principles and there should be open and transparent guidelines relating to (1)
the separation of the rule-making and technical assistance functions of the
WIPO Secretariat, (2) transparency in technical assistance programmes, to be
ensured by, for example, making publicly available the roster of consultants,
publishing the exact amounts spent on technical assistance in specific
countries and on specific activities, and establishing a code of conduct for
the Secretariat staff and consultants, and (3) the use of development
indicators to assess the results of technical assistance.
22. Due to
the cross-cutting nature of the issues relating to the development dimension of
intellectual property, the Development Agenda should be pursued in all areas of
WIPO’s activities, including in the work of all standing committees and other
subsidiary bodies. The proposal for a Development Agenda, due to its broad and
horizontal nature, cannot be limited to or contained within the work of any
specific subsidiary body within WIPO. All WIPO bodies are expected to
contribute to the realization of the development dimension. In this regard, it
is important to reiterate that while the Permanent Committee on Cooperation for
Development Related to Intellectual Property (PCIPD) may be tasked by the
General Assembly with some activities, it cannot be the forum for addressing
the proposals contained in document WO/GA/31/11.
II.1(c) Guidelines on Incorporating the Development Dimension into WIPO
Programmes and Activities
23. As
already noted, one of the possible impediments to ensuring the full
implementation of WIPO’s development mandate may have been lack of clear
guidance from the Member States on how development should be placed at the core
of WIPO programmes and activities. It is therefore important that Member States
develop clear principles and guidelines on the basis of which the development
dimension of the Organization’s work can be measured. In this regard, this
submission proposes specific guidelines and principles with respect to
norm-setting, technical assistance and technology transfer.
II.2 Strengthening the Role of Member-Driven
Structures to Ensure the Effective Implementation of WIPO’S Development Mandate
24. The
governance and oversight structures of the Organization need to be adequate and
properly balanced to ensure the implementation of the mandate, and in
particular, that the Organization, and consequently the Secretariat, performs
its functions properly. The current governance and oversight structures of WIPO
need to be examined and recommendations could be made on how to improve them.
25. As an
international multilateral organization, WIPO should operate in a member-driven
manner. The Secretariat is guided by the instructions of the General Assembly
regarding both the internal and external affairs of the Organization. Each
Member State bears a special responsibility to ensure this. For example, formal
and informal meetings or consultations held between Members or organized by the
International Bureau upon request of the Member States should be held in
Geneva, in an open and transparent manner that involves all interested Members
States.
26. Some
concerns and misunderstandings have been expressed, in the past, with regard to
WIPO’s nature as an institution, due to its funding structure. The activities
of WIPO and the International Bureau are financed by income from four main
sources, namely, contributions by Member States, fees paid by private sector
users of WIPO’s global protection systems (PCT, Madrid, Hague and Lisbon
Systems), the sale of WIPO’s publications and from interest earnings. In 2002,
for example, approximately 86 percent of WIPO’s total funding came from fees.
This situation has led some actors to argue that WIPO should be more responsive
to the interests of the rightholders that use the global protection systems and
their associations, since the Organization appears to have become “dependent”
on them for financing. This line of reasoning is not compatible with WIPO’s
intergovernmental nature. Additionally, it is not conducive to a development
sensitive Organization that should cater to a multistakeholder constituency of
all members countries.
27. In fact, WIPO’s existence is
not dependent on rightholders, and rightholders do not “fund” WIPO. WIPO as an
international intergovernmental organization is answerable to its Member States
and its existence depends on its Members only. The global protection systems
which contribute significantly to WIPO’s income are systems that have been
created by Member States. Rightholders
must not loose sight of the central role played by Member States in the
establishment of these services. Consequently, as much as the International Bureau
should strive to provide efficient services as mandated by Members, payment for
those services by rightholders should in no way provide a basis for anyone to
claim that the users of those protection systems have the right to determine
the agenda or priorities of the Organization, or even the manner in which the
incomes of the Organization are to be allocated under its Programme and Budget.
WIPO must remain a Member-driven Organization, where the role of the
Secretariat is focused on facilitating the work of the Members and implementing
decisions and instructions received from Member States.
II.2 (a)
Establishing an Independent Evaluation and Research Office
28. In order
to strengthen the oversight function of Members, as well as the quality and
cost-effectiveness of the Organization’s modus-operandi
one should consider establishing an independent evaluation and research office
called the WIPO Evaluation and Research Office (WERO), which would report to
the General Assembly. The Head of the Office would be vetted and approved by
the General Assembly and appointed for a fixed term after which time such a
person may not be employed in the WIPO Secretariat. Similar conditions may also
apply to the staff of WERO. The Office would have unrestricted access to all
WIPO documents and the results of the its research and recommendations would be
fed back into the on-going and subsequent WIPO programmes and activities,
including with respect to norm-setting.
29. Such an
Office would provide a transparent, independent and objective mechanism, vis-à-vis the General Assembly, the WIPO
Secretariat and all interested stakeholders, through which WIPO’s programmes
and activities would be evaluated with respect to their development impact in
general, and their impact on innovation, creativity and access to, and
dissemination of knowledge and technology. Its creation would not only have the
effect of enhancing the credibility of WIPO and its programmes but would also
be in line with established international practice. The World Bank Group, the
International Monetary Fund (IMF), the European Investment Bank, the United
Nations Development Programme (UNDP), among other international institutions,
already have similar mechanisms.
30. WERO should provide enhanced coordination both inside and outside of
WIPO as well as be mandated to present annual reports of its work, research and
findings to the General Assembly. Its functions could include: evaluation of
all WIPO programmes and activities with respect to their development impact in
general and their impact on innovation, creativity and access to and
dissemination of knowledge and technology; carrying out “Development Impact
Assessments” with respect to proposed norm-setting activities in WIPO, as well
as impact assessments and research on existing WIPO administered treaties;
avoidance of duplication of costs and actions; the promotion of greater
cost-efficiency; monitoring and evaluating the design, delivery and
implementation of WIPO legal-technical and technical assistance activities
based on the principles and guidelines established by the General Assembly and
taking into account best practices from other providers of technical
assistance; and monitoring and evaluating WIPO’s policies and processes more
generally. The foregoing list is meant to be merely indicative. It is clear
that the possible role and functions of such an independent evaluation unit
would have to be carefully examined and discussed by Member States. The idea of
establishing WERO should be examined in detail during the next session of the
General Assembly, in September of 2005.
II.3 Transparency and Inclusion: Facilitating the
Participation of Public Interest Groups in WIPO Processes.
31. Intellectual
property law and policy as well as other regulatory regimes relating to
innovation and transfer of technology have implications beyond the regulation
of monopoly rights over inventions, copyrights, trademarks and other related
subject matter. They impact on a much wider range of issues from access to
education and learning materials to the availability and affordability of
essential medicines as well on the efforts to bridge the digital divide and the
technological gap. When rules and standards touch upon such fundamental issues,
they cannot be formulated in accordance only with the expertise and concerns of
specialized IP lawyers and rightholders groups.
32. Openness
of WIPO discussions and decisions and the participation of public interest
groups in discussions on an equal footing with rightholders’ associations must
be sought. WIPO must take into account in all its key policy and technical
committees the interests of the consumers, the public at large and those of
rightholders. In this context, among other issues, the role and relevance of
the Policy Advisory Commission (PAC) and the Industry Advisory Commission (IAC)
should merit re-evaluation.
33. The PAC and the IAC were established in 1998. According to the
memorandum of the Director General to 40th series of the Assemblies
of the Member States of WIPO in September/October 2004, the mandate of the PAC
is to “provide objective and informed external advice to the Director General,
particularly with respect to policy-making, medium-term planning, processes and
the needs of the market sector”.[2]
The IAC, on the other hand, was established for the purposes of ensuring that
the “voice of the market sector is heard and that the Organization is
responsive to its [market sector] needs”[3]
and ensure that there is “a direct input of industry into the policy-making
process in WIPO”.
34. While the
role of the PAC and the IAC are purely advisory, the emphasis on the role of
industry and the “market sector” has raised concerns among other stakeholders
about the preponderant participation of industry vis-à-vis public interest groups in WIPO. It is important to ensure
that these advisory bodies whose membership is not determined or vetted by
Members States do not unduly influence the manner in which the Organisation
determines its priorities or implements Member’s decisions.
II.4 OPERATIVE SUMMARY
35. To streamline the development dimension in WIPO’s
work programme and ensure that WIPO’s governance structures effectively promote
the application of the development dimension in all activities of the
Organization, it is proposed that:
III.
PROMOTING PRO-DEVELOPMENT NORM-SETTING IN WIPO
38. WIPO, as one of the principal international
institutions responsible for negotiating standards and norms to promote
creative intellectual activity and to facilitate transfer of technology, has a
significant role to play in ensuring that intellectual property rules advance
development objectives and bears a special responsibility in overcoming current
limitations in international norm-setting. Until now, norm-setting in WIPO has
focused on encouraging international agreements solely designed to promote the
protection of intellectual property. Attempts by the International Bureau to
launch initiatives such as the WIPO Patent Agenda, as well as its active
engagement in support of treaties currently under negotiations, which do not
respond to development objectives or priorities of developing countries and are
not concerned with their access to the
socio-economic and cultural benefits of innovation and creativity, are cases in
point. To rectify this situation, WIPO should pursue a more balanced and
comprehensive approach to norm-setting, emphasizing the design and negotiation
of rules and standards that are guided by and fully address the development
objectives and concerns of developing and least developed countries and of the
international community.
39. Discussion
on the Establishment of a Development Agenda for WIPO in the 2004 WIPO General
Assembly reflected broad agreement among WIPO Member States on the need to
enhance and mainstream the development dimension in WIPO activities, including
norm-setting. The challenge, as pointed
out by some Member States, is now determining how norm-setting and other
activities within WIPO can effectively incorporate development objectives and concerns. This section of the present submission
therefore identifies and elaborates on
a number of principles and guidelines that, applied to the various substantive
norm-setting activities in WIPO, would foster an inclusive and pro-development
approach to negotiations. The
submission also proposes several mechanisms for implementing these principles
and guidelines in WIPO in the context of the Establishment of a Development
Agenda for the Organization.
III.1
Principles and Guidelines for Norm-setting in WIPO
40. Elaborating
rules that effectively promote development and creative intellectual activity
requires an adequate framework for negotiations and other WIPO norm-setting
activities. Identifying interests behind norm-setting initiatives, assessing
the costs and benefits of those initiatives in terms of sustainable
development, promoting a balance between protection and dissemination of
knowledge and the interests of developed and developing countries, fostering
the participation of a broad range of stakeholders, and supporting the compatibility
with broader international objectives and commitments constitute, in this
regard, concrete and significant steps that can be taken in the context of WIPO
norm-setting activities to ensure their outcome reflects development needs and
concerns.
41. We should
reassess the norm-setting process at WIPO with a view to guaranteeing that the
development dimension is part of that process. As a result, a number of
principles and guidelines should apply broadly to all WIPO norm-setting
activities, including initiatives to implement or modify current international
intellectual property standards and to develop new treaties. Such guidelines and procedures have also
been agreed to, for example, in the context of the World Trade Organization
(WTO) to determine the objectives, scope, and modalities of some negotiations
in that Organization. In this regard,
possible guidelines and procedures to direct norm-setting activities in WIPO
should include:
III.1
(a) Member-driven and Transparent Work Plan and Strategic vision, as well as
Individual Initiatives
42. One of the
obstacles for norm-setting initiatives in WIPO to adequately respond to
development objectives and concerns is the lack of information about the short
and long-term objectives of these initiatives, as well as about their impact
and the consequences of various possible outcomes. The WIPO Secretariat has often played an active role in
norm-setting processes and in general there has not been an adequate debate on
the feasibility and desirability of new, expanded, or modified rules. The
points of view of developing and least developed countries have been ignored in
general and negotiations have been launched without real consensus.
43. To ensure that the concerns of all WIPO
Member States and relevant stakeholders are appropriately addressed in
norm-setting, the WIPO Secretariat should not play a substantive negotiating
role by endorsing or supporting particular proposals for the implementation or
development of intellectual property rules or standards. On the contrary, the right and burden should
be on Member States to propose initiatives and priorities for the work plan of
WIPO and its different bodies, as well as to provide a clear indication of the
actual need for, as well as the costs and benefits of the proposed norms, to
enhance a balanced and informed debate, as proposed below.
III.1(b)
Comprehensive Assessment and Justification in Terms of Sustainable Development
44. Intellectual property protection is not an
end in itself, but rather a means to support public policy objectives such as
economic, social, and cultural well-being. Any development, implementation or
modification of international intellectual property rules should be based on
and respond to sustainable development needs and concerns. All norm-setting activities in WIPO
should be based on available empirical evidence and on a cost-benefit analysis.
Given that intellectual property
protection will generate different costs in different circumstances, from
implementation burdens to potential loss of public policy space - from the
economic, social, cultural, and environmental perspectives -, its necessity and
desirability vis-a-vis other non-intellectual property-type and/or
non-exclusionary options should be thoroughly analyzed on a case-by-case
basis.
45. Alternatives within and outside the
intellectual property system that would reach similar objectives with less
monopoly of knowledge should be particularly considered. For instance, the
potential of open access models for the promotion of innovation and creativity
should be explored as a feasible and desirable option in many contexts. Given that the granting of exclusive rights
frequently entail considerable costs, particularly in terms of access to
knowledge and essential goods of crucial importance to social and economic
development, any initiative involving the creation of new or
expanded intellectual property rights should only be adopted if proven to be
superior, in social and economic terms, to solutions based on the creation of public
goods. Indeed, recognizing that current international intellectual property
rules have emphasized the protection of rights vis-a-vis the public
domain, WIPO should now actively seek
ways to safeguard and promote the public domain and the innovative and creative
activities that depend on it.
46. As stated by the Commission on Intellectual
Property Rights established by the government of the United Kingdom, the
questions to be answered for each proposed norm-setting initiative include: How much intellectual property protection is a good thing? How should it
be structured? Serious answers tot these questions shall be found to promote
compatibility between sustainable development and norm-setting activities.
III.1(c) Recognition
of Different Levels of Technological, Economic and Social Development
47. Another key
issue to consider in norm-setting is the need to balance the benefits and costs
of any initiative between developed and developing countries and, more
generally, between the consumers and producers/owners of proprietary
technological knowledge. The design
and effectiveness of intellectual property as a tool for development has proven
to be directly related to prevailing socio-economic circumstances, as becomes
obvious when one considers the historical record and the evolution of national
intellectual property regimes, particularly in the developed countries. As a
result, the different levels of development of Member States should be an
inherent consideration in WIPO norm-setting.
Only an unambiguous recognition of the need to gauge intellectual
property rules according to differing development needs and concerns, and thus
of the need for a more equitable distribution of the costs and gains of
intellectual property protection, can validate norm-setting activities in WIPO
as being balanced and inclusive of all its Member States.
48. Such an
approach should be reflected in operative and substantial special and
differential treatment provisions for developing countries and least developed
countries. Moreover, a
pro-development approach to norm-setting should recognize sustainable
development as its raison d’etre: all international norms on
intellectual property –not just a few provisions in each instrument– should be
designed to contribute to the economic, social, and environmental welfare,
especially of developing and least developed countries, and to stimulate
relevant innovation, research, and technology, and promote access to knowledge.
III.1(d)
Recognition of the Rights of Different Stakeholder Groups and the General
Public as users of the Intellectual Property System
49. As the
development dimension requires norm-setting in WIPO to fully consider and take
into account the needs and concerns of developing and least developed
countries, it also commands the recognition of the rights of a wide range of
stakeholders, all of which constitute the true “users” of the intellectual
property system. It is not only the
interests of owners of intellectual property that should be contemplated and
respected, but also those of society at large, as well as the particularly
vulnerable segments of the population. As noted by Member States in the 2004
WIPO General Assembly, intellectual property should strike a better balance
between private rights and the public interest. Nevertheless, in many
norm-setting initiatives in WIPO, it is solely the interests of those that seek
new or increased intellectual property rights that are considered.
50. In discussions currently taking place in
the Standing Committee on Copyright and Related Rights (SCCR), for instance,
little consideration has been given to the rights of performers, authors,
educators, students, consumers, and others who would be directly impacted by
the proposed new rules. Similarly, when future work in the area of patent law
harmonization was discussed during the Tenth Session of the Standing Committee
on the Law of Patents (SCP), only the approach of patent holders was brought
to the attention of Member States. A pro-development approach to norm-setting
in WIPO requires moving away from such a narrow perception of the
constituencies whose interests are at stake in respect of intellectual
property-related issues and fostering the consideration of the rights and
interests of a broad range of stakeholders, as well as promoting their active
and effective participation in WIPO’s work.
III.1(e)
Compatibility with, and Support of the Objectives and Provisions of other
International Instruments
51. In order to fully incorporate the
development dimension, norm-setting in WIPO should not merely consider
sustainable development objectives in its processes and outcomes, but also
ensure that these processes and outcomes are fully compatible and actively
support other international instruments that reflect and advance those
development objectives. It is not only a matter of ensuring coherence; it is
also one of recognizing the purpose and inherent limitations of intellectual
property as an instrument of public policy and the fact that IP protection
cannot be seen as an objective or a value in itself. As a result, for instance, under no circumstances can
human rights – which are inalienable and universal – be subordinated to
intellectual property protection.
52. Likewise,
intellectual property must adequately support basic rights and public policy
objectives enshrined by the international community, including the Millennium
Development Goals (MDGs), the Plan of Implementation of the World Summit on
Sustainable Development, and the Convention on Biological Diversity. In this regard, a critical criterion in the
analysis of the costs and benefits of norm-setting initiatives should be
ensuring that the proposed rules or standards are supportive of these other
international instruments and do not run counter to their objectives.
III.2
Implementing Pro-Development Principles and Guidelines in WIPO
53. Recognition
and application of the principles and guidelines described above are essential
to ensuring that the processes and outcomes of all WIPO norm-setting activities
promote a development-oriented international intellectual property system. Consequently, they should be incorporated
without delay into both binding and non-binding norm-setting activities,
including initiatives to implement or modify current international intellectual
property standards and to develop intellectual property rules in new fields.
The mechanisms to implement these principles include:
(a)
Undertaking
independent, evidence-based “Development Impact Assessment” (DIA) to consider
the possible implications of each norm-setting initiative for core sustainable
development indicators such as innovation, access by the public to knowledge
and products, job creation, poverty alleviation, equity, respect for cultural
diversity, protection of biodiversity, health, and education, particularly in
developing and least developed countries.
Such an independent evaluation could be carried out by the proposed WIPO Evaluation and Research Office (WERO) with the effective participation and
engagement of a broad range of key stakeholders. As part of the DIA process, a
cost-benefit evaluation should also be requested from other relevant
international organizations and bodies, including the United Nations Conference
on Trade and Development (UNCTAD), the Food and Agriculture Organization (FAO),
the World Bank, the World Health Organization (WHO), the South Centre, and the
Commission on Human Rights. In particular, DIAs could be:
·
conducted in a staged manner, including through both
preliminary and advanced DIAs as the norm-setting activities are proposed and
take place;
·
performed through a consideration of the proposed
norms and the different policy scenarios, as well as their impact on several
country groups, including developed, developing, and least developed countries
and the world as a whole;
·
focused not only on direct impacts, but also on
indirect and cumulative, impacts;
·
carried out and executed
with an emphasis on the relationship between the proposed rules or standards
and other international instruments, to ensure they are compatible and support
objectives, rights, and flexibilities established by the international
community in other fora. In particular, rights or standards that surpass those
established by the WTO TRIPS Agreement should be exceptional.
(b)
Incorporating
provisions recognizing the difference between developed and developing WIPO
Member States in all norm-setting initiatives. These provisions should aim to
recognize the over-arching objectives and principles of intellectual property
protection, provide longer compliance periods, promote transfer of technology,
safeguard the national implementation of intellectual property rules, suppress
anti-competitive practices, and generally ensure intellectual property rules
are a coherent part of broader development strategies. Provisions such as these
have already been proposed by developing countries in the SCP for the draft
Substantive Patent Law Treaty (SPLT). It is our expectation that they will be
agreed to by all WIPO Member States, in the SCP and other WIPO subsidiary
bodies;
(c)
Holding public
hearings prior to the initiation of any discussion toward norm-setting in WIPO,
with the broad participation of different stakeholders, including other
intergovernmental organizations, academia, consumer groups, and other civil
society organizations. Such participation should continue and be promoted in
the course of norm-setting discussions and negotiations.
IV. Principles and
Guidelines for WIPO’s Provision of
Technical Assistance and Evaluation
54. The
proposal for the Establishment of a Development Agenda for WIPO (WIPO document
WO/GA/31/11) noted the central
importance of WIPO in the provision of intellectual property-related technical
assistance and capacity building. Apart
from WIPO’s own mandate, by virtue of the 1995 Agreement between WIPO and the
World Trade Organization (WTO), WIPO plays an important role in the
implementation of the TRIPS Agreement in developing countries. Under Article 4
of that Agreement, WIPO and WTO Secretariat are required to cooperate in matters
of legal-technical and technical assistance “so as to maximize the usefulness
of those activities”.
55. In the
context of the TRIPS Agreement, legal-technical and technical assistance
activities should mean implementing its provisions, including the
pro-development ones, such as Articles 7, 8, 13, 30, 31 and 40, as well as
subsequent pro-development decisions such as the Doha Declaration on the TRIPS
Agreement and Public Health, in a manner responsive to the development needs
and aspirations of individual countries.
56. While WIPO has made significant strides in providing
developing countries with technical assistance, more needs to be done to ensure
that such assistance is useful to
development objectives. At the same time, WIPO’s technical assistance has come
under criticism from various quarters including independent bodies such as the
U.K Commission on Intellectual Property Rights, which in its report in 2002
characterized WIPO’s technical assistance as too often planned and delivered in
isolation from development goals of developing countries.
57. It is clear that for WIPO’s technical assistance to be of
value to developing and least developed countries, such assistance needs to be
planned and delivered based on transparent principles and guidelines on the
basis of which an objective assessment of its impact and effectiveness can be
made. Principles and guidelines established by the Member States will provide a
much needed road map for the expansion and qualitative improvement of WIPO’s
technical assistance. This document elaborates on the possible principles and
guidelines for the provision of technical assistance by WIPO and on the
mechanisms for implementing the principles and guidelines.
IV.1 Concerns over the Provision of Intellectual Property Technical
Assistance
58. Technical assistance
in many ways is a service to promote and enhance coherent policy formulation,
review and legislative reform. As developing countries continue to implement
intellectual property-related treaties, such as the TRIPS Agreement, WIPO
administrated treaties and to participate in new negotiations at the
multilateral, regional and bilateral level, appropriate and effective technical
assistance and capacity building will be crucial if these countries are to use
intellectual property and other tools for fostering creativity and
technological development effectively in the pursuit of their development
goals.
59. The type of intellectual property technical assistance that
has been provided in the last decades, as already noted, has raised a series of
concerns. These concerns relate to the underlying philosophy, content and
process of the technical assistance provision. The most important concerns
raised by various stakeholders and the wider literature on intellectual
property technical assistance include the following:
·
intellectual property may often be
seen as an objective in itself. Broader policy concerns such as science and
innovation policies, technology transfer, access to technological goods and
enhanced competition have been addressed in a very limited manner;
·
solutions to the technical and
capacity constraints tend to be identified and designed by the providers and
not by the beneficiaries of the assistance;
·
there is a tendency to
over-emphasize the benefits of intellectual property while giving very little
attention to the limitations and actual costs;
·
the content of the technical
assistance programmes has mostly focused on the implementation and enforcement
of obligations and not on the use of in-built rights and flexibilities in
international treaties for developing countries;
·
little attention has been given to
different levels of development and cultural differences;
·
there is insufficient suport for
local input and capacity building when identifying solutions that are specific
to the respective country and its economic structure;
·
assistance is mostly targeted to a
limited group of beneficiaries (mostly intellectual property offices and
certain business groups);
·
the widespread provision, over a
number of decades, of model laws to developing countries without sufficient or
any accompanying advice on the trade and development effects of these laws and
full analysis of the evidence regarding economic effects; and
·
There has been little independent
evaluation of the technical assistance provided by WIPO, including to determine
the impact and effectiveness of the assistance programmes.
60. With a view to
addressing the above concerns and the inherent urgency of making good use of
the limited resources allocated to intellectual property technical assistance
in WIPO, there is need to establish a set of international principles to
improve the quality of technical assistance and to adopt guidelines for the
design, delivery and implementation as well as evaluation of technical
assistance provided by WIPO including in the context of the 1995 Agreement
between WIPO and the WTO.
IV.2 Principles and Guidelines for the Provision of Technical Assistance
61. In order for WIPO’s
technical assistance to be useful in the long-term, and for there to be a basis
for objective review and improvement, the Organization’s activities and
programmes in this field should be guided by pre-agreed principles and
guidelines. Among others, the principles and guidelines could include:
IV.2(a) Development
Focused Technical Assistance
62. The provision of
technical assistance should have as its objectives the fulfillment of the
development goals of the recipient countries and broader development goals such
as the United Nations Millennium Development Goals (MDGs). In designing,
delivering and evaluating technical assistance, the different levels of
development of various countries should be taken into account.
IV.2
(b)Comprehensive and Coherent Assistance Programmes
63. Special attention
shall be paid to developing the technical capacity of countries to fully use
in-built flexibilities in international agreements to advance national
pro-development policies. Coherence and mutual supportiveness with other
relevant international instruments must also be promoted. The use of model intellectual property laws
without careful evaluation of their effects should be discouraged.
IV.2 (c) Integrated
Approach
64. The intellectual
property system cannot work in isolation from competition policy and other
related regulatory regimes. In designing technical assistance programmes, there
is a need to expand its coverage to include matters related to the use of
competition law and policy to address abuses of intellectual property and
practices that unduly restrain trade and the transfer and dissemination of
technology.
IV.2(d) Neutral,
Unbiased and Non-Discriminatory
65. The provision of
technical assistance should be neutral and of advisory nature based on actual
and expressed needs. The assistance should not discriminate among recipients or
issues to be addressed and should not be perceived as being a reward system for
supporting certain positions in WIPO negotiations.
IV.2(e) Tailor-made
and Demand-driven
66. The technical
assistance programmes and activities should ensure that intellectual property
laws and regulations are tailored to meet each country’s level of development
and are fully responsive to the specific needs and problems of individual
societies. The assistance should correspond to the needs of various
stakeholders in developing and least developed countries and not just the
intellectual property offices and rightholders.
IV.2(f) Independence
of Providers
67. WIPO technical
assistance staff and consultants should be fully independent and potential
conflicts of interest should be avoided.
IV.2(g) Continuous
Evaluation as to Effectiveness
68. WIPO’s technical
assistance programmes and activities should be continuously evaluated both
internally and independently to ensure its effectiveness.
IV.2(h) Transparency
69. All information
about design, delivery, cost, financing, beneficiaries and implementation of
technical assistance programmes as well as the results of internal and external
independent evaluation should be publicly available.
IV.3 Mechanisms for the Implementation of Pro-development Technical
Assistance
70. The adoption of principles and guidelines
on technical assistance will not by itself improve the effectiveness of the
technical assistance programmes if concrete mechanisms are not set up to
implement and monitor the adherence to these principles and guidelines. In
order to implement the above principles and guidelines, a number of measures
therefore need to be undertaken. Among others, these could include:
IV.3(a) Adoption of
the Principles and Guidelines by the 2005 WIPO General Assembly
71. The principles and
guidelines elaborated above should be adopted by the next WIPO General Assembly
in September/October 2005 and should form the basis for all future WIPO
technical assistance and capacity building.
IV.3(b)
Establishment of Databases and Dedicated Webpage to Improve Information sharing
72. There is a need to
improve information sharing by using existing resources including databases on
technical cooperation by major donors and providers. A web page with all
technical assistance information provided by WIPO and other relevant
international organizations and donors could be created to enhance transparency
and allow for objective monitoring processes.
A permanent notification system could assist in keeping such a system
operative and updated. Whenever a country requests WIPO’s assistance, WIPO
could, by means of the website notify Members and other interested parties
including observers that its assistance has been sought and where models,
drafts etc. are suggested, these should
also be publicly available.
IV.3 (c) Defining
and Separating the Functions of the WIPO Secretariat
73. Exploratory
work should be undertaken to analyze options for separating norm-setting
functions from technical assistance functions of the WIPO Secretariat. Two
possibilities, among others, could be considered. One option could be for the
General Assembly to merge most of the functions of the Economic Development
Sector with those of the WIPO World Wide Academy (WWA) and set up a
semi-independent arm for research, technical assistance and capacity building.
While such a structure could still remain part of the WIPO Secretariat, under
the Director General, an independent advisory panel appointed by the General
Assembly could be constituted to internally evaluate the performance of
technical assistance programmes, monitor the adherence to the proposed
principles and guidelines and help set priorities for research and assistance.
74. Alternatively, a
wholly independent entity, not part of the WIPO Secretariat, but funded by
WIPO, could be established along the model of the Advisory Centre on WTO Law
(ACWL). The managing board of such an independent entity could be drawn from the
WIPO Secretariat, UNCTAD, UNDP, UNESCO, UNIDO, WTO, WHO and FAO as well as
other international organisations with expertise in development and
intellectual property. The board could also have representation from industry
and from consumer and public interest groups.
75. Whichever approach
is taken, the technical assistance activities of WIPO could at any rate be
subject to the independent evaluation and monitoring of the proposed WIPO
Evaluation and Research Office (WERO). We have provided the details on the
operation and possible functions of WERO in the section on the mandate and
governance of WIPO.
IV.3(d)
Establishment of a Code of Ethics and Assuring independence of Consultants
76. Consideration should
be given to developing an ethics code for the Secretariat’s technical
assistance staff and consultants to ensure the highest level of professionalism
and neutrality. Such a code of ethics could also be useful to protect the staff
and consultants from undue influence and/or harassment. In addition, the roster
of consultants for technical assistance should be available to the public. The
selection process for consultants should look at potential conflicts of
interest in relation to parallel public or private activities as well as
ethical behavior.
IV.3(e) Development
of Indicators and Benchmarks for Evaluation
77. A process for
identifying relevant indicators and benchmarks for evaluating the
Organization’s technical assistance activities should be commenced as soon as
possible. UNCTAD, the World Bank and
other international organizations could provide inputs in the identification of
relevant indicators.
V. Guidelines for Future Work
on Transfer and Dissemination of Technology and Related Competition Policies
78. Transfer
of technology is a comprehensive term covering mechanisms for transmitting
technical information across borders and its effective diffusion into the host
economy. It refers to numerous complex processes, ranging from innovation and
international marketing of technology to its absorption and imitation. Transfer
of technology may be realized through formal –market- as well as informal
–non-market- means. A formal or market mechanism is a commercial transaction,
based on a legal arrangement between consenting parties. It includes, in the
main, trade in goods, foreign direct investment (FDI), licensing, joint
research and development (R&D) arrangements.
79. There are
also important legitimate informal, non-market channels of transfer of
technology. Perhaps most significant is
the process of imitation through product inspection, reverse engineering,
decompilation of software, and even simple trial and error. Another means is to
study available information about new technologies. Patent applications are available for this purpose. Thus, patents are expected to provide both a
direct source of technology transfer, through FDI and licensing, and an
indirect form through inspection. To
play this role, patent disclosures need to provide sufficient information for
engineers to understand the technologies.
80. In brief,
under these various mechanisms, intellectual property protection can play a
role but not a unique role, for transfer and dissemination of technology. The
TRIPS Agreement recognizes precisely that the transfer and dissemination of
technology should be a fundamental objective of the global intellectual
property system. Moreover, under Article 1 of the Agreement between WIPO and
the United Nations (1974), WIPO is recognized as a specialized agency with the
responsibility for taking appropriate measures for facilitating transfer of
technology related to industrial property to developing countries in order to
accelerate economic, social and cultural development.
81. Even in
the case of formal technology transfers that occur mainly in voluntary
transactions, it has been recognized that this process often does not work as
intended and that the unwillingness to transfer technologies might pose a
competitive threat. In fact, it is frequently the case that IP right holders
choose to exercise the monopoly rights conferred by patents and other forms of
intellectual property in a manner that runs counter to the purported principles
and objectives of the IP system, including the transfer and dissemination of
technology. Policies are thus needed to rectify this situation, by removing
impediments to the transfer and dissemination of knowledge and to lower the
costs and risks of technology acquisition.
82. As
proposed in document WO/GA/31/11, the development dimension of intellectual
property policy requires that WIPO, through a dedicated process, explore the
type of policies, initiatives and reforms necessary to contribute to the
transfer and dissemination of technology to the benefit of all countries. Such work is in fact indispensable if WIPO
is to fulfill the second part of its U.N mandate which confers WIPO with the
responsibility of taking appropriate action for “facilitating the transfer of
technology”. This submission therefore elaborates on how such a process could
be undertaken in WIPO and suggests possible guidelines and approaches for a
future programme on transfer of technology-related matters in WIPO.
V.1 Pro-development Approaches to Transfer and
Dissemination of Technology
83. The issue
of transfer of technology to developing countries is not new. It has been in
the international agenda for decades. However, drawing on the lessons of the
past and a better understanding of the process, a pro-development approach to
this subject is called for. To this end, this section of the submission
reviews, first, possible mechanisms that developed countries might promote to
facilitate the transfer and dissemination of technology to developing
countries. Secondly, the paper explores, in a non-exhaustive manner, possible
new initiatives at the multilateral level that could contribute to this
endeavor. It, finally, concludes with some observations on the role of
competition policies in this area.
V.2 Intellectual Property Policies and Standards
84. Historically,
the intellectual property system has included elements that are supportive of
efforts to promote technology transfer and follow-on innovation, effective
mostly under circumstances prevailing in the developing countries. Patents,
trade secrets, copyrights, and trademarks, however, can hamper or create
impediments to tech-transfer, particularly when considered through the
perspective of technology flows from Developed to Developing countries, i.e.
from technology producer nations to technology consumer nations. Therefore attention should be paid to a
number of intellectual property specific instruments that while effectively
recognizing the rights of inventors and creators across the board, produces
very unbalanced results in terms of encouraging transfer of technology to
developing countries and the establishment of functional national innovation
systems in their respective national jurisdictions.
85. From this
perspective a more dynamic approach to transfer and dissemination of
technology, for the benefit of developing and least developed countries, should
incorporate, among others, appropriate policies with respect to:
86. The above
listing, although illustrative, covers a whole range of technical issues that
could not be exhaustively covered in this paper. What follows is, however,
indicative of what could be done in the context of the Development Agenda.
V.2(a) Supportive
IP-related Policies by Industrialized Countries
87. With a
view to promoting transfer and dissemination of technology, among other related
objectives, WIPO should contribute to a debate with other relevant
international organizations, as appropriate, on such initiatives as an
undertaking by developed countries to provide:
·
technical and financial assistance for improving the
ability of countries to absorb technology;
·
fiscal benefits to firms transferring technologies to
developing countries of the same type often available in developed countries
for firms that transfer technologies to nationally less developed regions;
·
same tax advantages for R&D performed abroad as
for R&D done at home. For example,
to meet the terms of Article 66.2, TRIPS, there might be somewhat greater
advantages offered for R&D performed in developing countries;
·
fiscal incentives to encourage enterprises to train
scientific, engineering and management graduates from developing countries,
with a view to their knowledge being used for development of technology in
their country of origin;
·
public resources, such as those from the National
Science Foundation or National Institutes for Health in the United States,
could be used to support research into the technology development and
technology transfer needs of developing countries;
·
grant programs could be established for research into
technologies that would be of greatest productivity for the purpose of meeting
priority social needs of developing countries.
Technologies developed under such programs could be made publicly available,
specially those funded through public resources;
·
grant programs could be devised that offer support to
proposals that meaningfully involve research teams in developing countries, in
partnership with research groups in donor countries;
·
Universities should be encouraged to recruit and train
students from developing countries in science, technology, and management. Incentives for setting up degree programs
through distance learning or even foreign establishments may be particularly
effective;
·
Special trust funds for the training of scientific and
technical personnel, for facilitating the transfer of technologies that are
particularly sensitive for the provision of public goods, and for encouraging
research in developing countries.
V.2(b) Multilateral supportive Measures
88. At the
multilateral level, the following initiatives could be considered:
·
Adoption of commitments like those contained in
Article 66.2 of the TRIPS Agreement, expanded to benefit all developing
countries;
·
the establishment of a special fee on applications
through the Patent Cooperation Treaty, the revenues of which would be earmarked
for the promotion of research and development (R&D) activities in the
developing and least developed countries;
·
the establishment of an intermediary conduit to reduce
the asymmetric information problem in private transactions between technology
buyers and sellers, for knowledge about successful technology-acquisition
programs that have been undertaken by national and sub-national governments in the
past. It could serve a useful role in encouraging collaboration and information
sharing among member governments. Such
programme could involve, for example, detailed information about past policies
and effective partnerships between agencies and domestic firms in acquiring
technologies and the terms involved, such as royalty rates and contract clauses
that resulted in actual local absorption.
They could also describe the most effective roles for public research facilities
and universities in facilitating technology transfer. Once enough information
of this type has been compiled and studied, it could attempt to develop a model
technology transfer contract that could serve as a guideline for transfer of
technology and would represent the legitimate interests of both buyers and
sellers;
·
A multilateral agreement where signatories would place
into the public domain, or find other means of sharing at modest cost, the
results of largely publicly funded research. The idea is to set out a mechanism
for increasing the international flow of technical information, especially to
developing countries, through expansion of the public domain in scientific and
technological information, safeguarding, in particular, the public nature of
information that is publicly developed and funded without unduly restricting
private rights in commercial technologies.
V.3 Competition Policies
89. Exploitation
of intellectual property rights could give rise to anticompetitive behaviour,
whether by individual firms or by concerted practices or agreement among firms.
An adequate definition and implementation of public policies to deal with this
problem represents one of the most important criteria for the efficient
functioning of any intellectual property system and thus to the enhancement of
the transfer and dissemination of technology.
A pro-competitive intellectual property system needs to incorporate
appropriate competition policies, among others, to prevent the abuse of
intellectual property rights, the resort to practices that unreasonable
restrain trade or adversely affect the international transfer of technology.
90. However,
relationships between intellectual property rights and their potential abuse in
technology markets are complex and require considerable expertise in diagnosis
and treatment. Moreover, the scope for
abusing intellectual property rights depends on the competitive nature of
distribution markets and entry possibilities. To rely on this avenue for
enhancing transfer of technology may require a broad policy approach to
expanding dynamic competition. Work in this area should not be alien to the
pursuit of a Development Agenda in WIPO.
91. Intellectual
property laws aim at conferring exclusive rights on individuals to enable
owners to appropriate the full market value of the protected subject
matter. By promising that the
intellectual property holder may obtain a full reward from the market,
intellectual property rights may serve as an incentive for the creation, use
and exploitation of inventions, works, marks and designs.
92. However,
it is often the case that intellectual property owners exploit their legal
rights to unreasonably block competition. They may do this, for example, by
exploiting the unique characteristics of certain protected products that
prevent rival firms from developing alternative products or entering certain
markets, and refusing to grant licenses to prospective competitors. While the
traditional problems of technology transfer in hardware industries persist, new
problems have arisen in the service industries, and practices other than those
relating to licensing have become more important, in particular in regard to
foreign direct investment, cooperation agreements, outsourcing,
standardization, interconnection, and access to information.
93. Three types
of conflicts may arise between the pursuit of competitiveness and intellectual
property rights. First, intellectual property may be used contrary to the
objectives and conditions of its protection, a situation called misuse. Second,
market power resulting from intellectual property may be used to extend the
protection beyond its purpose, such as to enhance, extend or abuse monopoly
power. Third, agreements on the use or the exploitation of intellectual
property may be concluded in restraint of trade or adversely affecting the
transfer or the dissemination of technology or other knowledge, a situation
called restrictive contracts or concerted practice. In order to prevent or
control such conflicts and to distinguish pernicious practices from competition-enhancing
ones, many countries have enacted antitrust regulations or other competition
legislation to respond to anticompetitive behaviour. Competition rules are not
designed to curb the functioning of the intellectual property system, but rather
to safeguard its proper functioning.
94. The TRIPS
Agreement sets out general principles to establish and enforce anti-monopoly
policies. The relevant competition provisions of TRIPS are Article 8.2 and
Article 40. Article 8.2 is part of the “General Provisions and Basic
Principles” of Part I of the Agreement. Another relevant competition provision
of the Agreement is Article 31(k) dealing with compulsory licenses in the case
of practices which have been determined, after judicial or administrative process,
to be anticompetitive and need to be remedied by the grant of compulsory
licenses.
95. Effective
administration and enforcement of an intellectual property-related competition
policy appear to be particularly important, in view of the interdependency of
intellectual property protection and competition. Where the efficient
functioning of intellectual property is impaired by restrictive practices, the
market-oriented incentives decline and social costs rise. In this respect, a well-balanced design of
intellectual property treaties and national laws as regards, for example,
exceptions for prior users, experimental or fair use, adequate disclosure,
efficient and working requirements and misuse defences, may help both to
unburden competition policy and encourage private action against undue claims
for protection.
96. The complexities of the application of substantive competition policy
rules relating to intellectual property require specialized and administrative
agencies and courts.
97. A major
concern that has been expressed in respect of the intellectual property system
as regards transfer of technology is the potential for abuse of exclusive
rights conferred by patents and other forms of intellectual property. In this context, the work on technology transfer
in WIPO may address elements such as:
·
the consideration of model approaches on how to
implement the relevant provisions of TRIPS;
·
the inclusion in new intellectual property treaties of
relevant provisions to deal with anti-competitive behaviour or abuse of
monopoly rights by rights holders, such as the proposed Substantive Patent Law
Treaty (SPLT);
·
the development of an international framework to deal
with issues of substantive law relating to anti-competitive licensing practices
primarily those that adversely affect the transfer and dissemination of
technology and restrain trade;
·
the provision of technical cooperation to developing
countries, at their request, to better understand the interface between
intellectual property rights and competition policies;
·
implementation of intellectual property policies in
developing countries should be matched with appropriate enforcement mechanisms
that effectively restrain anti-competitive behaviour;
·
Developed countries authorities to undertake, at the
request of affected countries, enforcement actions against firms headquartered
or located in their jurisdictions.
98. In sum,
any implementation of substantive rules of competition policy must take account
of a large number of complex factors, such as national and international market
conditions and interdependencies and the goals and structure of national
intellectual property (including its built-in pro-competitive rules such as
experimental or fair use, exhaustion, patent or copyright misuse defences).
This is certainly no easy task and not one that can be complied with by
isolated policies or by one developing country. Rather this is a complex,
challenging and time-consuming endeavour that should be part and parcel of the
programmatic work of WIPO.