Is The Development Dimension Of WIPO Incompatible With Its Role Of IP Protection?

The World Intellectual Property Organization is a successful United Nations agency if success is measured by its generated income and the number of international registrations of intellectual property titles. However, in its role as a norm-setting United Nations agency, the organisation has been struggling for the past year as member countries have quite a different view on its core objectives.

Several committees this year could not reach agreement on the summary of the week’s work or on future work, and find it difficult to narrow the gap between dissenting views. This discontent seemed to have brewed after two relatively successful years at WIPO each yielding an international treaty (IPW, WIPO, 26 June 2014) and (IPW, WIPO, 29 June 2012).

Other international instruments are in the making, however, agreement remains elusive, even on a procedural treaty on the registration of industrial designs, thought to be within reach.

The firmer grip on positions, which have hardly changed in the last years, appears to be linked to underlying broader political issues impacting discussions, according to sources interviewed by Intellectual Property Watch.

At the heart of many discussions in WIPO committees is the organisation’s role as a UN specialised agency and the mainstreaming in its activities of its Development Agenda. The WIPO Development Agenda, adopted in 2007, includes 45 recommendations, and was considered by developing countries as a promising step forward, and by the organisation itself as “an important milestone” (IPW, WIPO, 29 September 2007).

Current candidate treaties are a treaty on industrial designs, a treaty on the protection of broadcasting organisations and one or several instruments on the protection of genetic resources, traditional knowledge and folklore.

The potential treaty on industrial designs seems to be stumbling over the issue of technical assistance, not that anybody is challenging the importance of such assistance, but rather how to address technical assistance in the context of the treaty. In particular, the United States has been firm in its preference to have a resolution attached to the treaty (rather than in the treaty) and the African Group has been equally firm in insisting that an article on technical assistance be part of the body of the treaty (IPW, WIPO, 10 May 2014).

The treaty on industrial designs is generally seen by developing countries as primarily serving the interests of developed country applicants, and developed countries as being the demandeurs.

On the other hand, the potential treaty or treaties on the protection of genetic resources, traditional knowledge, and folklore is seeking to address issues facing mostly developing countries. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), after more than ten years of discussions, has achieved draft texts but with diverse opinions on their degree of readiness for a final high-level treaty negotiation.

A high-level meeting with ambassadors and senior capital-based officials at the opening of the 26th session of the IGC in February could not unlock discussions (IPW, WIPO, 4 February 2014).

The treaty protecting broadcasting organisations has more shared interests, although the issue of whether or not this new treaty should cover webcasting and “on-demand programmes” is still under discussion. Some developing countries say that their main issue is with illegal retransmission of radio signals as they only have a very limited area covered by internet.

More contentious in the same Standing Committee on Copyright and Related Rights (SCCR), is the issue of exceptions and limitations to copyright in favour of libraries, education, and research for the benefit of developing countries, with developed countries reluctant to enter into discussing such exceptions in the context of a new treaty.

Twice this year the SCCR had to adjourn without agreeing on the conclusions of the meeting, or the future work of the committee (IPW, WIPO, 5 May 2014).

The Development Agenda Group (DAG), which is a group of countries which came together after the Development Agenda was adopted, regularly asks that an agenda item on how some committees implement the Development Agenda be added. Some committees do not report on their development-related activities, such as the Committee on WIPO Standards (CWS). The disagreement on such an agenda item led to the early adjournment of the session in May (IPW, WIPO, 20 May 2014).

The 22-30 September WIPO General Assembly is left with addressing issues left open by a number of committees.

Same Divide but Some Nuances

A few years back, it seemed the discussions could be mainly characterised by the divide between developed and developing countries. Although the divide still very much exists, some nuances can be noticed in the committees’ discussions. According to several sources, some countries appear to be defending their interests in a stronger way than before.

For example, it has been noted that the African Group this year in some committees has kept to a more inflexible stance than other developing countries such as the Group of Latin American and Caribbean countries, or the Asia and Pacific Group (except India). In the same manner, on some issues, the European Union too has positioned itself with more pugnacity, while some countries such as Australia and Switzerland appear to have a more flexible approach on certain issues.

WIPO a Development Agency, or Not

According to a developing country source, a change of mind in the organisation is needed. WIPO still relies too much on specialised more technical bodies like the CWS and on developed countries.

Another developing country source told Intellectual Property Watch that developed countries were solely interested in protecting intellectual property rights and enforcing them. However, the source said, developing countries do not have the capacities to copy highly technical goods. They do not have the trained professionals or the infrastructure. “You can’t copy a car, or a computer,” the source noted.

Most developing countries are not a market for luxury goods, he added. Counterfeit products do not compete with the original product in those countries where nobody could afford the genuine articles.

Maybe the lack of agreement comes from “the lack of understanding that IP is for everybody,” the source said. “Innovation does not happen only in developed countries.”

The main problem is the misunderstanding of what the Development Agenda is really about, the source said. The way to implement it in WIPO cannot only be based on projects, he said, referring to the Committee on Intellectual Property and Development (CDIP) which was created at the same time as the Development Agenda was adopted with a view to implement the 45 recommendations. The “project-based approach is the wrong way,” he said.

The CDIP includes development-related projects, such as a “Project on Enhancing South-South Cooperation on IP and Development among Developing Countries and LDCs,” and a “Project on Intellectual Property and Brain Drain.” as well as a number of studies.

In May, the functioning of the CDIP was called into question by developed countries after a week of difficult discussions on sensitive issues with no agreement (IPW, WIPO, 24 May 2014).

In the same manner, developing countries have been resenting the fact that not all WIPO committees report on the development dimension of their activities through a set of “Coordination Mechanisms and Monitoring, Assessing and Reporting Modalities,” known as the Coordination Mechanism.

Earlier this month, the Program and Budget Committee (PBC) was unable to agree on a new definition of the development expenditures for the next WIPO budget. Developing countries have been saying for a number of years that the definition of development expenditures in the budget is too broad and includes items not directly related to development (IPW, WIPO, 15 September 2014).

According to the developing country source, the only two issues of interest to developed countriesin the current WIPO norm-setting activities are the design law and the broadcasting treaties. There is a risk that if those two treaties are adopted, developed countries will be in a strong position and have little interest in pursuing other treaties such as in the IGC, the source said.

A developed country source argued that, contrary to some developing countries’ perspective, the design law treaty may not constitute a bargaining chip as it is not a vital exercise.

According to the source, the Development Agenda is a dialectical and political tool. Projects implementing the Development Agenda are money “well spent” on the development activities of WIPO, the source said.

The inclusion of the Coordination Mechanism requiring reporting on development activities in technical committees has given way to a rhetorical discussion, but is only a discussion among a limited number of countries, the source said.

Another developed country source said the disagreement in committees is the visible tip of the iceberg. Underneath, the source told Intellectual Property Watch, is the main body of work of WIPO. It might receive less attention but it really is the “raison d’être” of WIPO, and members should not lose sight of this mission and the “essential work undertaken by the secretariat to sustain that core mission” and not only focus on the normative agenda of WIPO.

“Each committee should be considered on its own merits,” the source said. The WIPO normative agenda is very ambitious and it has been very successful, the source said, adding that this success has induced high expectations. “If you look at other UN agencies, the pace set by WIPO is extremely ambitious,” he said.

“WIPO is not a development organisation,” he added.

Other issues, which are not the main focus of committees, have been discussed informally, such as the governance of the organisation and the opening of new external WIPO offices in the regions.

On this last point, according to the developing country source, the main reason to oppose the opening of WIPO external offices is the fear that the focus would be shifted from developed to developing countries. External offices have now been “watered down” to only capacity building but do not provide IP services, he said. The challenge lies in the fact that developed countries want a cap, a finite number for external offices, he added. The solution, he said, is not in guidelines but depends on political decisions. Guidelines are useful but will not solve the number problem.

According to several developed country sources, there is a need for a sound rationale for external offices and although regional WIPO offices can contribute to develop an “IP culture”, it is “just a question of finding the right balance.”

Meanwhile, WIPO continues to show steady growth of its international IP filing systems. Barely affected by the global economic crisis, the organisation shows ever-increasing patent, trademark and industrial design filings (IPW, WIPO, 13 March 2014). It is the registration of those international filings that makes the most of the organisation’s income, unlike any other UN specialised agency.