[A2k] TWN Info: WIPO-Oversight needed on intellectual property and public policy activities

Sangeeta Shashikant ssangeeta at myjaring.net
Thu Sep 27 07:37:36 PDT 2012


Title : TWN IP Info: WIPO - Oversight needed on intellectual property and
public policy activities
 Date : 20 September 2012

 Contents: 

TWN Info Service on Intellectual Property Issues (Sept12/01)
20 September 2012
Third World Network
www.twn.my

WIPO: Oversight needed on intellectual property and public policy activities
Published in SUNS #7441 dated 20 September 2012

London, 19 Sep (Sangeeta Shashikant) -- The World Intellectual Property
Organisation's (WIPO) engagement with public policy issues, particularly
food security, public health and climate change, have heightened concerns
among developing countries and non-governmental organisations (NGOs) leading
to calls for more oversight and information.

WIPO's activities on intellectual property (IP) and public policy issues are
undertaken under Program 18 titled "IP and Global Challenges". This program
coordinates with Program 20 (External Offices and Relations) and through
this cooperation engages in a range of United Nations and other
intergovernmental processes and negotiations on a variety of issues,
including those pertaining to public health, food security and climate
change.

WIPO's extensive engagement on these issues has created significant unease
among developing countries as currently there is no oversight by Member
States over the activities WIPO conducts under the Program or the positions
it takes on the inter-linkages between IP and public policy issues, as it
engages in various intergovernmental processes.

At the recent Program and Budget Committee (PBC) meeting on 10-14 September,
countries reviewed WIPO's performance in implementing Program 18.

The African Group and the Development Agenda Group (DAG) requested for "more
frequent reporting by program manager before the proper WIPO committee" such
as the Committee on Development and IP (CDIP) and the Standing Committee on
Patents (SCP). The African Group and DAG also stressed that a one-time
review of the program during the PBC was inadequate "given the important
activities conducted by this program".

NGOs have also expressed concerns with regard to the activities of Program
18. In recent months, a group of NGOs has written letters to Mr. Francis
Gurry, the WIPO Director-General, and Mr. Johannes Christian Wichard, the
Deputy Director-General, raising various concerns with regard to the
Secretariat's approach to food security.

In the first letter dated 18 July 2012, the NGOs raised concern with regard
to the organisation of a workshop in May 2012 on IP and Food Security,
stating that the "workshop lacked a balanced range of topics and
participants and consequently failed to deliver the full range of
perspectives on the role of IP". In line with the Development Agenda
recommendations, the NGOs also requested more information on the workshop.

In another letter dated 5 September, the same NGOs, disappointed with WIPO's
"non-committal" response to their letter, reiterated their request for more
information on the workshop organised in May and stressed that future
meetings should have a balanced representation of participants and
perspectives, including critical perspectives of the role of the IP system.

In response to the Secretariat's assertions, including its claim that there
was "consensus" from conferences it had organised, "on the enabling role of
an effective legal and administrative framework of intellectual property for
innovation and agricultural development", the NGO letter also requests for
more information on specific decisions of WIPO's Member States that has
"mandated WIPO to explore the role of IP in increasing agricultural
productivity and the conclusions that have been reached on the matter",
adding that WIPO's policy decisions must be driven by Member States.

Concern over activities of the Global Challenges program and the demand for
more oversight by developing countries is not new. It has been raised by
developing countries on numerous occasions, but has made little headway due
to opposition from developed countries.

At the 2011 PBC session, South Africa, on behalf of the African Group, noted
that Program 18 addressed important issues but the activities were not being
discussed by Member States in any platform in WIPO. It recommended that the
program activities be discussed in the existing intergovernmental forum,
that is by the SCP or the CDIP.

This recommendation was reiterated and supported by many other developing
countries such as the Development Agenda Group, India, Pakistan and Brazil.
Brazil also expressed concerns regarding the mandates followed within
Program 18 and the need for its activities to be reported to a WIPO body to
allow all Member States to have a say on the priorities and the
implementation of this program.

However, the recommendation faced significant opposition from developed
countries, as they insisted that discussing Program 18 activities in the SCP
or the CDIP would require a change in those committees' mandates and this
they could not support. Developed countries preferred maintaining the status
quo, that is for the PBC to discuss activities of Program 18. However, this
was not acceptable to developing countries, which felt that substantive
guidance had to be given to the Secretariat and this could not be done
through the PBC.

Developed countries' resistance to more oversight over Program 18 persisted
at the recent September PBC, during discussion on Program Performance Report
for the 2010/11 biennium, as Member States reviewed the Secretariat's
performance under Program 18.

In the Program Performance Report - a self-assessment report - the
Secretariat states that the program on IP and Global Challenges "finalized
implementation of its first full biennium in 2010/2011 contributing to
WIPO's goals by providing support for strong, empirically well-founded
policy dialogues between governments, international organizations, civil
society actors and the private sector on current and emerging global issues
touching on IP".

During the discussion, the Secretariat highlighted the trilateral
cooperation between the World Trade Organisation, World Health Organisation
and WIPO on IP, trade and health, adding that the policy overlaps need to be
managed. It also highlighted the WIPO "Re: Search" initiative, adding that
technology transfer agreements have been concluded and a meeting of partners
will take place in October.

[According to WIPO, the Re: Search initiative is a new consortium where
public and private sector organisations share valuable IP and expertise with
the global health research community to promote development of new drugs,
vaccines, and diagnostics to treat neglected tropical diseases, malaria, and
tuberculosis. However, the access terms promoted by Re: Search has been
criticised by public health groups such as Medecins Sans Frontieres, which
noted that "... instead of allowing all countries where neglected diseases
are prevalent to access the products, the initiative restricts royalty-free
licences to least-developed countries only, with access for other developing
countries negotiable on a case by case basis", adding that "With its timid
approach to licensing terms, WIPO is falling behind in its access policies,
when it should be leading".]

On climate change, the Secretariat highlighted a pilot platform known as
"WIPO GREEN" that aims to promote accelerated adaptation, adoption and
deployment of environmental technologies, particularly in developing
countries and emerging economies.

[According to the WIPO website, this initiative "Serves as a hub connecting
various critical partners, with WIPO facilitating policy dialogue and
networking" where WIPO positions itself as a broker for "owners of
proprietary technologies to make selected technologies and solutions
available as packages, including know-how, services and materials". It
offers "credibility", billing itself as "A trustworthy entry - through WIPO
and other intergovernmental and non-governmental organization partners -
into the United Nations Framework Convention on Climate Change (UNFCCC)
process, in particular its Technology Centers and Networks." Some NGOs who
follow the climate negotiations, where IP is extremely contentious, expect
similar restrictions as those in the Re: Search initiative.]

On food security, the Secretariat said that it was exploring what WIPO can
do in the area, adding that it had identified East Africa, in particular
Tanzania, as a case study on the potential use of IP to improve
productivity.

In response to the information on Program 18 provided in the Program
Performance Report, Egypt, on behalf of the African Group and the DAG, said
that it attached heightened importance to the activities of Program 18
because it deals with key policy issues of significant interest to African
and developing countries, especially public health, food security and
climate change. Egypt then noted that the report on Program 18 in the
Program Performance Report makes the general statement that "design,
planning and implementation of activities undertaken by the program were
guided by relevant DA (Development Agenda) recommendations".

It added that "While such a statement is welcomed, it is not explanation or
elaboration on what exactly DA recommendations guided the program, how the
guidance was ensured, and what are the specific results the program achieved
last year to address the challenges of food security, public health and
climate change in African and developing countries".

Egypt stressed the need for more frequent reporting by the program manager
before the proper WIPO committee, given the fact that PBC reviews the
Program Performance Report (PPR) once a year, and the important activities
conducted by this program.

"In this context, we would like to suggest that given the fact that the
program was engaged in the implementation and preparation of four
development agenda projects on technology transfer, open collaborative and
IP based models and IP competition policy, then it would be appropriate to
make the required additional reporting of program 18 before the Committee on
Development and Intellectual Property. In addition, it could be also
presented before the Standing Committee on Patents because of the integral
substantive relationship between the program activities and the
international patent system, and national experts and officials on patent
issues will be present to make use of these several activities", Egypt
added.

South Africa said that it would appreciate a written report on what WIPO was
doing and the challenges it was facing, adding that there was a need to
discuss the issues in the SCP or in CDIP. It also sought clarification on
how WIPO defined "green technology" and whether WIPO had an "indicative
list" of such technologies.

Brazil and Pakistan also supported the call for the Secretariat to provide
more written information on its activities.

The United States questioned the value added from extra reporting to the SCP
and the CDIP, while Switzerland said that there was no need for further
reports apart from what was in the Program Performance Report, adding, "We
have the necessary detail. We don't need to go beyond that". It also claimed
that there was agreement that the PBC was the right forum to discuss these
issues.

Egypt, responding to the US's question, stressed that there was indeed value
in additional reporting, stressing that Program 18 was presented as part of
PPR once a year. It added that CDIP was relevant because the report on
Program 18 itself had a clear statement that the Program was engaged in
preparation of a number of CDIP projects while the SCP was relevant because
it related to the patent system, further stating that there were no experts
on public health, food security or climate change in the PBC.

South Africa, supporting Egypt's response, countered the Swiss statement,
pointing out that it was inaccurate to say that countries had agreed at the
last PBC not to have additional reporting. It stressed that it was not
advisable for Member States to simply rely on the Program Performance Report
and the oral information presented by the Secretariat. "We feel that we can
add value by giving additional direction to WIPO," South Africa said.

China also concurred that it was important to discuss issues of Program 18
in other committees including the CDIP.

No specific decision was taken on the matter. However, developing countries
insisted that they preferred "to note" rather than approve the Program
Performance Report. Developed countries opposed this approach. The final
decision reached states: "The Program and Budget Committee (PBC) having
reviewed the Program Performance Report (PPR) and recognizing its nature as
a self-assessment of the Secretariat, recommended its approval to the
General Assembly, subject to the comments, concerns and suggestions for
improvement raised by Member States and reflected in the report of the PBC
as well as annexed to the PPR (document WO/PBC/19/2)".

NGO CONCERNS ON WIPO'S ENGAGEMENT ON FOOD SECURITY

In recent months, a group of NGOs concerned with WIPO's activities on IP and
food security in Africa has also written repeated letters to the
Director-General and the Deputy Director-General highlighting their issues
and concerns and requesting WIPO for more information on its activities.

WIPO organised a workshop on Intellectual Property, Innovation and Food
Security on Sustainable Wheat Production in East Africa, which took place in
Geneva on 10-11 May 2012. Following the workshop, seven NGOs and NGO
networks raised concerns in a letter to WIPO dated 18 July 2012.

The letter was signed by the Tanzania Alliance for Biodiversity, an alliance
of many NGOs; the African Centre for Biosafety, South Africa; the Eastern &
Southern Africa Small Scale Farmers Forum (ESAFF); Surplus People Project;
Swissaid Tanzania; Tanzania Organic Agriculture Movement (TAOM); and the
Tanzania Organic Certification Association (TANCERT).

The letter expressed concern that participation in the workshop was
dominated by representatives from the private sector and the biggest and
most powerful multinational corporations (e. g. BASF, Bayer CropScience, Dow
Agro Sciences, DuPont, Monsanto, and Syngenta), adding that there was hardly
any representation of civil society organisations that champion farmers'
rights or even of key national farmers' organisations.

The letter further states that the workshop programme largely took a
one-sided approach, that is of promoting the IP system as a mechanism for
food security without exploring alternative or different perspectives on the
subject, adding that the approach was clearly tilted in favour of industry
interests, in particular multinational corporations.

The letter also expressed concern that representatives of corporations seem
to have played a central role in several sessions of the workshop. For
instance, according to the programme, Dr. Michael Kock, the Global Head of
Intellectual Property, Seed and Biotechnology for Syngenta International AG
was the main and only contributor for the session titled "Brainstorm Initial
Thoughts on Next Steps - How to Build Areas of Future Focus".

Thus, overall, the NGOs were of the view that the workshop lacked a balanced
range of topics and participants and consequently failed to deliver the full
range of perspectives on the role of IP, including critical views about the
IP system relating to the adverse impacts on food security or
agro-biodiversity such as those articulated by Mr. Olivier de Schutter, the
United Nations Special Rapporteur on the Right to Food.

The letter also said that the programme and participants were heavily tilted
in favour of the interests of the private sector, particularly multinational
corporations, stressing that the strategies of many of the corporations
represented was basically to use intellectual property laws to commodify the
world seed supply, control plant germplasm and maximise company profits by
eliminating farmers' rights, in particular their right to save, use,
exchange and sell seeds.

In the letter, the NGOs requested, in line with Recommendation 5 of the WIPO
Development Agenda, that WIPO make available publicly and to the signatories
full information about the workshop, including presentations, report of the
proceedings of the workshop, expected and actual outcomes of the workshop,
and information on any follow-up that is expected to take place.

It also requested that for future similar workshops, WIPO ensure balanced
representation of participants and perspectives. In particular, the workshop
should also discuss critical perspectives of the role of the IP system and
ensure adequate participation of civil society groups and farmer groups that
do not represent commercial interests but rather champion farmers' rights
and the conservation of agricultural biodiversity for livelihood security
and food sovereignty. The signatories also expressed willingness to
participate in future discussion involving African countries, provided
travel assistance is made available.

In its response dated 23 July 2012, the WIPO Deputy Director-General said
that many organisations including the Food and Agriculture Organisation
(FAO), the UN Development Programme (UNDP) and the UN Committee on World
Food Security (CFS) have identified increasing agricultural productivity as
a key component in the fight against food insecurity, adding that "Member
States have tasked WIPO to explore what the proper role and contribution of
intellectual property might be to this struggle".

Within the framework of that programme, WIPO held the workshop to explore
possibilities for a case study on the role of IP protection for sustainable
wheat production in Tanzania, WIPO further added.

It also said that "present or otherwise associated" were government
officials and scientists from Tanzania, professors from Sokoine University
in Tanzania, representatives from the Consultative Group on International
Agricultural Research (CGIAR), the Maize and Wheat Improvement Centre
(CIMMYT), FAO and UPOV, the Tanzania-based private breeding and seed sector,
representatives of companies operating globally in wheat- related
innovation, the International Seed Federation (ISF) and "with a view to a
possible future cooperation, potential donors".

The response further adds that the various public conferences on the topic
found "there was a consensus on the enabling role of an effective legal and
administrative framework of intellectual property protection for innovation
and agricultural development". The response further states: "... we are
still very much at a preliminary stage of this work" and "Depending on the
progress made, the intention is clearly to associate further partners that
may be able to contribute to the balanced and appropriate use of
intellectual property in creating an enabling environment for increasing
agricultural productivity at an appropriate moment".

The NGOs (the same signatories) in yet another letter sent in September 2012
reiterated their concerns and request for more information on the workshop
held, as WIPO had failed to provide the information requested. The letter
also states that it found WIPO's response "disappointing, as it is
non-committal about ensuring that future meetings have a balance[d]
representation of participants and perspective", adding that it found WIPO's
current approach to IP and food security, "totally unacceptable".

The letter also sought information on "which specific decision of WIPO's
Member States has mandated WIPO to explore the role of IP in increasing
agricultural productivity and the conclusions that have been reached on the
matter". It also adds that being an intergovernmental agency, WIPO's policy
decisions have to be taken by Member States and that it was inappropriate
for WIPO to take the position that there is consensus on the matter on the
basis of "public conferences".

The letter also highlights the findings of the report of the UN Special
Rapporteur on the Right to Food that illuminated the several adverse impacts
of the IP system, including neglect of the needs of poor farmers in
developing countries, unaffordable agriculture inputs, the jeopardising of
farmers' seed systems and threatening agro-biodiversity. The letter stresses
that WIPO, being a UN agency, "needs to acknowledge and incorporate (not
disregard) these considerations in its work on IP, innovation and
agriculture".

[To the knowledge of the author, no further information or response has been
received from WIPO at the time of writing.] +








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