[A2k] TWN Info: WIPO Secretariat drives agenda on global issues, its legitimacy in question

Sangeeta Shashikant ssangeeta at myjaring.net
Wed Jul 10 07:49:40 PDT 2013


TWN Info Service on Intellectual Property Issues (July13/01)
  
10 July 2013
    
Third World Network
    
www.twn.my
    

WIPO: Secretariat drives agenda on global issues, its legitimacy in
question

    Geneva, 10 July (Sangeeta Shashikant) – The World Intellectual
Property Organization (WIPO) has set for itself the aim to be a “leading
intergovernmental forum for addressing the intersection between
intellectual property (IP) and global public policy issues”.

    This was done with the establishment of the new Program 18 on “IP and
Global Challenges” under “Strategic Goal VII: Addressing IP In Relation to
Global Policy Issues” of the WIPO Program and Budget document for the
2008/2009 biennium.

    However, five years on, the legitimacy of WIPO’s Program on IP and
Global Policy is in question. Despite its lauded aim, to date no
substantive intergovernmental discussions have taken place on the
interface of intellectual property and global public issues to guide the
work of the Program.

    The role of its Member States has been reduced to that of a mere
bystander, entitled only to information briefings on Secretariat
activities, while the Secretariat remains in full control of the Program,
defining its priorities and activities, and unilaterally determining how
to address the complex intersection of IP and public policy issues.

    Several Member States participating in the week long meeting of the
Program & Budget Committee (PBC) which began on Monday, 8 July, raised
concerns over lack of information and Member State oversight over the
Program’s activities as they reviewed WIPO’s performance report for 2012.

    Concern over activities of the Global Challenges program and the
demand for more oversight by way of in-depth discussion in a WIPO
Committee is not new. It has been raised by developing countries on
numerous occasions, but has made little headway due to opposition from
developed countries. These countries continue to insist that oral
briefings by the Secretariat during the PBC are sufficient.  [See
http://www.twnside.org.sg/title2/climate/info.service/2012/climate20120904.
htm]

    Even the request of Brazil on behalf of the Development Agenda Group,
that the Secretariat prepare a separate written report and provide
detailed information on its activities was opposed by Group B (composed of
developed countries).

    The PBC will discuss at its ongoing meeting various matters related to
WIPO’s Program & Budget, including its Performance Report for 2012 and the
draft Program & Budget for the 2014/2015 biennium.

    Public Policy – Performance in 2012

    In its self-assessment report titled “Program Performance Report”
(PPR), the Secretariat states “Program 18 addresses innovation and IP at
the intersection of pressing global and interconnected issues, in
particular Global Health, Climate Change, and Food Security.”

    It claims that its “efforts have led to an increased recognition of
WIPO as a credible source of support, collaboration with and reference for
information on innovation and IP in relation to the global challenges” on
the topics mentioned above, adding also that “The Program continued to
receive positive comments and support from a wide range of stakeholders
for WIPO’s work on IP and Global Challenges.”

On the topics of Global Health, Climate Change and Food Security, the
Secretariat’s report highlights several activities it has undertaken.

On global health, it refers to WIPO Re: Search, a database whereby
entities holding intellectual property related to neglected tropical
diseases could offer access to their intellectual property by way of
contractual arrangements. Entities using the database have to agree to
certain guiding principles, in particular that royalty free licenses
should be granted where the R&D involves least developed countries (LDCs).

In briefing Member States, the Secretariat referred to WIPO Re: Search as
an “open innovation network.”
    
According to the Secretariat, since the launch of WIPO Re: Search in 2011,
26 collaborations and 5 hosting arrangements (African scientists
developing their research skills at facilities of certain developed
country Members) have been initiated.

On the topic of climate change, the PPR refers to WIPO GREEN, a database
to be launched in November 2013 where holders of technologies may upload
information about their technologies for licensing.

In relation to food security, the PPR states “[w]ork on the relationship
between IP and food security was progressing through the further
exploration of a case study on IP, innovation and food security, jointly
with the Government of Tanzania and other relevant stakeholders”.

In addition, mention is also made to seminars WIPO has organized and
studies it has undertaken on the above topics as well as on IP and
competition policy.

It also claims that the “design, planning and implementation of activities
undertaken by Program 18 were guided by the relevant DA (Development
Agenda) Recommendations”.

In the PPR as well, the Secretariat claims to have satisfied the following
Expected Results:

    
*       Enhanced understanding among policy makers on the interface
between global challenges and innovation and intellectual property as a
basis for improved policy decision making (on the basis of delegates in
different fora expressing support for WIPO’s work, no. of visits to its
webpage,  and a majority of participants in 3 meetings were satisfied with
WIPO’s meetings)
    
* 
        WIPO established as a credible source of support, assistance, and
reference for information on innovation and IP in relevant public policy
processes (on the basis of 2 requests received for assistance)
    
* 
        IP-based tools are used for technology transfer from developed to
developing countries, particularly least developed countries, to address
global challenges (on the basis of WIPO Green and WIPO Re: Search)
    
* 
        WIPO established as the relevant Forum for analyzing and debating
issues in the field of IP and competition policy (on the basis of meetings
held on the issue of IP and competition).

    While the PPR unequivocally raves about the Secretariat’s
achievements, shortcomings/criticisms of the initiatives that have been
raised by a number of stakeholders remain unaddressed and even
unacknowledged in the PPR.

    On the WIPO Re: Search, M้decins Sans Fronti่res (MSF), an
international medical humanitarian agency has been critical of the
initiative as it “restricts royalty-free licences to least developed
countries only, with access for other developing countries negotiable on a
case by case basis” adding that “access provisions need to be put in place
to ensure the fruits of that innovation reaches those most in need”. It
further states “With its timid approach to licensing terms, WIPO is
falling behind in its access policies, when it should be leading”.

    Drugs for Neglected Disease initiative  (DNDi), a product development
partnership engaged in development of treatments for neglected diseases
and a partner of WIPO Re: Search, has also called on WIPO to “take a step
further in terms of access, especially by including not only the least
developed countries but all neglected disease-endemic countries” and for
“transparency in licensing practices that have a public health goal”.

    A developing country source described the Secretariat’s labeling of
the initiative as an “open innovation network” as “misleading” since in
reality there is very little openness around the initiative. Contractual
arrangements are completed with no transparency with regard to the terms
of the licenses, (e.g. how the issue of intellectual property is dealt
with, particularly where the licensee is from a developing country, and if
other contractual demands are made that restrict follow-up R&D by the
licensee). The source also remained skeptical about WIPO Green, adding
that it was nothing more than a “business as usual” licensing arrangement.

    WIPO’s work in the area of food security has also come under scrutiny.
In 2012, a group of NGOs had 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 particular, the NGOs raised
concern over 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,
but no information was forthcoming from the Secretariat. [See
http://www.twnside.org.sg/title2/climate/info.service/2012/climate20120601.
htm]

    Member States’ concerns
    
As Member States reviewed WIPO performance report for 2012 this week,
Brazil queried as to who determined the choice of projects that are to be
implemented and how can Member States further interact with the Program,
which only reports to the PBC. Brazil also requested the Secretariat to
submit a written report on its activities.

    Egypt said that the Program was important as about 7 million swiss
francs were spent on the Program. It added that it did not have enough
details to see how people benefited from the activities. It stressed that
the issues dealt with by the Program are not being discussed in any
Committee, adding that it was only discussed in the margins. Egypt
stressed that it would be good to decide which was the appropriate
committee that should deal with it as there was a need for full
information.

France also questioned the “added value” that WIPO brought to the
discussion e.g. on food security, stressing that WIPO does not have
experience to be an equal partner. It also questioned who decided which
activity is going to be implemented and how WIPO positions itself so that
it is working correctly around the issue.
It also questioned the legitimacy of WIPO being active in the area, adding
its view that WIPO was trying to “gain territory”.
    
In response to the various questions Wichard stressed that in its
activities it tries to avoid duplication, adding defensively that WIPO was
not engaging in “mission creep”. Wichard also referred to the broad
mandate of the 2011/2012 biennium in an attempt to justify the work of
Program 18, stressing that it provided “neutral and fact based resource”
and that WIPO was not “overstating WIPO’s importance or the importance of
IP”.

Brazil, Egypt and Algeria (on behalf of the Africa Group) stressed on the
need for a written report by Program 18 to provide more detailed
information on the Program. Brazil explained the need for a detailed
report was linked to the special characteristics of the Program, which
only reports to the PBC.

Group B (composed of developed countries) opposed the suggestion, adding
that they did not need additional information and were happy with things
as they stand.

It was finally agreed that the Program Performance Report could be
expanded to provide more information on the work of the Program.

    Draft P&B 2014/2015: More of the Same?

The draft P&B for the biennium 2014/2015 that will be considered at the
current PBC discussions reveals an agenda similar to those of previous
years.
Strategic Goal VII of the draft “reflects WIPO’s potential as the leading
intergovernmental forum for addressing the interaction between IP,
innovation and global public policy issues” adding “it implies proactive
and substantive engagement with other UN, intergovernmental and
non-governmental organizations in order to contribute to the search for
shared solutions to the major challenges facing humanity including climate
change, food security and public health”.
   
 The draft P&B claims that the focus of the Program on addressing
“innovation and IP at the nexus of interconnected global issues in
particular Global Health, Climate Change and Food Security …”, “is guided
largely by Member States as noted, inter alia in the DA”.

It further states, “Solutions for global problems depend in part on
unlocking the potential of innovation in such a way that countries at all
levels of development, benefit”. It adds that during the biennium, “the
Program will continue to engage in policy dialogues on IP and global
challenges with the aim or reinforcing WIPO’s role as a credible source of
fact-based information and analysis and a forum for international
discussion” further adding that work is guided by the DA and Millennium
Developments Goals.

In terms of implementation strategies, the focus of the Program will be on:

(i) “Developing and maintaining practical IP-based mechanisms and tools
for addressing global challenges”. Essentially the core emphasis of this
strategy will be multistakeholder platforms presumably such as WIPO
Re:Search and WIPO Green.

(ii) “Providing support to Member States, IGOs, civil society, and other
stakeholders and assisting them in the identification of feasible
approaches”. Under this Strategy, the Secretariat claims that it will
“provide a neutral and objective analysis” and provide substantive inputs
in public policy processes (with an emphasis on UN processes) aimed at
establishing “WIPO as the forum and reference point on IP as it touches on
global public policy issues”.

(iii) “Developing objective and balanced information on the relationships
among global challenges, innovation and technology transfer”. Under this
strategy, the Secretariat may develop policy studies on “the role of IP
and IP management in technology transfer” and “for a better understanding
of the policy and strategic drivers of innovation; demonstrate proactively
the use of IP tools and support Member States’ understanding of technology
transfer”.

The approach taken by the Secretariat raises a number of concerns.
   
The draft P&B does not envisage any substantive intergovernmental
discussion focused on the interface between intellectual property and
global policy issues. This is so although the Development Agenda
Recommendations that WIPO relies on to justify its engagement on public
policy issues contemplate discussions among Member States. For instance
Recommendation 19 which the Secretariat relies on to justify its
activities on technology transfer require “… discussion on how, within
WIPO’s mandate, to further facilitate access to knowledge and technology
for developing countries and LDCs to foster creativity and innovation and
to strengthen such existing activities within WIPO.”

The approach presented in the draft P&B is essentially Secretariat-driven,
and unlike that found in other Member State-driven intergovernmental
organizations whereby the tone of the discussion and direction on the
interface between interface between IP and public policy is set by the
membership.  For instance in the case of the World Health Organization,
the relationship between IP, innovation and public health was first
examined by expert commissions, followed by a rigorous discussions among
Member States and the formulation of a global strategy and various other
resolutions to be implemented by the Secretariat.

 The lack of Member State discussion and in that context the absence of
any serious examination of the interface between intellectual property and
global policy issues calls into question WIPO’s credibility in dealing
with such matters. This is more so since WIPO has no historical experience
in analyzing such issues and initiatives, and the perspectives championed
by the Program essentially reflect the Secretariat’s understanding of the
interface between IP and public policy issues and preferences in terms of
solution.

Consequently it is the Secretariat’s understanding and views of the
complex interface between intellectual property and public policy that is
promoted in international public policy processes, often in a manner that
misleads other intergovernmenatal organisations and stakeholders to
believe that the Secretariat is reflecting the position of WIPO Member
States.

This was amply demonstrated in a recent meeting (26-28 June) of the
Technology Executive Committee of the UN Framework Convention on Climate
Change (UNFCCC), whereby a member of the WIPO Secretariat cited a study
WIPO had commissioned and which concluded that there is evidence that IPRs
are an enabler of technology transfer but not a barrier, a view opposed by
many developing countries in the context of the UNFCCC. It was only on
being questioned did the Secretariat clarify that the study cited was not
the position of WIPO Member States. For more details see:
http://www.twnside.org.sg/title2/climate/info.service/2012/climate20120601.
htm

In addition, the Program is generally focused on the positive aspects of
intellectual property as its key implementation strategy is “to develop
and maintain IP-based mechanisms and tools” as it considers IP to be a
“tool to achieve socio-economic and development objectives”.  In the
elaboration there is no acknowledgement that intellectual property can
adversely impact public interest in a number of ways, an issue
well-acknowledged today by numerous other UN agencies such UNDP, UNCTAD
and WHO.

Noting the one-sided view of intellectual property, it is unsurprising
that the Secretariat is keenly pursuing voluntary licensing schemes such
as WIPO Green and WIPO Re: Search.
    
There is also no indication in the elaboration of Program 18 that the
Secretariat is committed to address the shortcomings highlighted by MSF
and DNDi with regard to WIPO Re: Search. +








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