Panel: IP Offices Must Be Engaged To Implement Development Agenda

The World Intellectual Property Organization will need the help of national intellectual property offices – and need to listen to their needs as well – if Development Agenda implementation is to be effective outside of Geneva, participants on a panel said last week.

“WIPO cannot keep implementing activities in isolation,” said Irfan Baloch, the acting director of the Development Agenda Coordination Division. The Development Agenda has been “mostly in Geneva,” and the debate that is occurring within WIPO needs to be extended and national IP offices need to informed, he said.

“And the Geneva debate needs to inform itself as to the reality on the ground,” he added.

Baloch was speaking at an 18 September International Centre for Trade and Sustainable Development event entitled, “IP Offices and the Implementation of the WIPO Development Agenda: Challenges and Opportunities.”

Assisting local partners should come with conditions to ensure they are fully committed to the projects undertaken under the Development Agenda, said Baloch. “We want to engage them” so that there is commitment, as too often something given by a UN agency may be taken as a gift. “Often gifts given have no commitment on the part of member states.”

But the Development Agenda must also respond to the real needs and interests of member states, and “different IP offices will play different roles depending on their mandate,” he said.

The function that an IP office can play is dependent on its organisational structure, said Ruth Okediji, a professor at the University of Minnesota Law School (and an Intellectual Property Watch board member).

The history of these national offices still has an effect on how they behave, said Okediji, who is researching the topic. “A lot of developing countries are still under some form of colonial administration” in this area, she said. And colonial governments had the option of establishing IP offices or not. For example, the British colonial government in India established patent offices, but the colonial government in the Caribbean colonies did not, she added.

What this means is that, while in developed countries IP offices were created to address national IP issues, in a lot of developing countries this is not the case, said Okediji. And in a lot of least developed countries there was no IP office “until WIPO stepped into the scene.”

Okediji identified three principal models of IP offices.

Under the “regulatory” model, IP offices generate norms, and affect practical administration of the IP system. The US, for example, has a regulation that short phrases cannot be copyrighted. This is not anywhere else in US law, Okediji said, but the copyright office said that is the case and courts give deference to it.

Second is the “coordination” model, which Okediji said is common in eastern European and Latin American states. In this case, IP offices work with related offices, such as those on consumer protection or competition, so that interpretation of IP complaints already incorporates the opinion of other agencies. This means national IP laws are consistent with other areas of law, she said.

Third is the “agency” model, which Okediji said is common in Africa, parts of Asia and in the Cariforum countries of the Caribbean. These are “principally administrative offices,” with “no real mandate” to generate norms, for enforcement, or to administer IP rights, she said. “They’re basically the agents via which multilateral IP treaties are funnelled into the country.”

These models matter, she said, because they influence how the IP system in that country develops, and if local innovators have local allies and voices. If the Development Agenda is going to have its goals executed, then IP offices should be empowered to interpret its dictates, and should have the capacity to identify challenges the multilateral system could pose locally and to engage in “norm competition,” Okediji said. If not, the Development Agenda “risks becoming… one of the norms that just exists in isolation in the international arena.”

Development Agenda implementation will be a “learn-by-doing” process, said Kenneth Nobrega of the Brazilian Ministry of Foreign Affairs. One possible way forward is a cooperation strategy of nine South American countries led by Brazil that is engaging patent offices but without harmonisation. The question is how IP offices can collaborate while retaining the possibility of making their own public policy, he said.