[A2k] Fwd: TWN IP Info: ECOSOC -- UNSG report takes pro-IP approach, omits concerns

K.M. Gopakumar kumargopakm at gmail.com
Fri Jun 28 12:41:38 PDT 2013

*Title :* TWN IP Info: ECOSOC -- UNSG report takes pro-IP approach, omits
*Date :* 28 June 2013


TWN Info Service on Intellectual Property Issues (Jun13/10)
25 June 2013
Third World Network

*UNSG report takes pro-IP approach, omits concerns *

Geneva, 28 Jun (K M Gopakumar and Sangeeta Shashikant) – A report of the
United Nations Secretary-General promotesintellectual property to boost the
attractiveness of innovation investment and improve the prospects for
science, technology and innovation, although the evidence in support of
such a link is tenuous.

The report also fails to reflect the increasing widespread concern of the
adverse impacts of current intellectual property (IP) instruments and
trends on the development and dissemination of technology and innovation
for the benefit of society.

The report titled “Science, technology and innovation, and the potential of
culture, for promoting sustainable development and achieving the Millennium
Development Goals” (the Report), was prepared for the consideration of the
annual ministerial-level substantive review of the Economic and Social
Council (ECOSOC) on 1-27 July in Geneva. The High Level Segment takes place
on 1-4 of July with the theme after which the report is titled.

The mandate for the annual ministerial review (AMR) is in UN General
Assembly Resolution GA 61/ 16, whereby the review is to be conducted by
means of a cross-sectoral approach focusing on thematic issues common to
the outcomes of the major United Nations conferences and summits in the
economic, social and related fields, including the Millennium Development
Goals (MDGs) and other internationally agreed goals. The AMR is to review
progress made in the implementation of the outcomes of those conferences
and summits and their follow-up processes, and assess its impact on the
achievement of the goals and targets of the conferences and summits.

According to the ECOSOC website, this year’s AMR will focus on the role of
science, technology and innovation, and the potential of culture – and
related national and international policies – in promoting sustainable
development and achieving the MDGs. It asserts that “Indeed, science,
technology and innovation can play a critical role in each and every MDG,
including by: fostering access to knowledge; increasing productivity,
industrialization, economic growth and the creation of decent jobs;
promoting health and access to essential drugs; achieving food security
through sustainable, equitable agricultural systems and by raising
production and incomes, especially of smallholder farms; promoting
renewable energy technologies in order to respond to the dual challenge of
reducing energy poverty while mitigating climate change” (see:

Principal partners from the UN system on this theme include the
International Telecommunication Union (ITU), UN Conference on Trade and
Development (UNCTAD), UN Educational, Scientific and Cultural Organization
(UNESCO), UN Industrial Development Organization (UNIDO), World
Intellectual Property Organization (WIPO) and UN Regional Commissions.

In addition to the introduction the Report contains six parts viz. global
context of science, technology, innovation and culture; shaping the course
of development: the role of science, technology and innovation; potential
of culture for sustainable development; strengthening multi-stakeholder
collaboration and partnerships; an enabling environment for the
transformative change sustainable  development through science, technology
, innovation and culture; towards coherent policy and action framework.

*National enabling environment to promote R&D*

The Report advocates an IP maximalist approach without any mention of
adverse impacts of IP protection and enforcement on development.  The most
forceful advocacy is in Part VI (A) which is discusses an enabling
environment for the transformative change towards sustainable development
through science, technology, innovation and culture. It deals with the
enabling environment at the national level, setting out six components viz.
national science, technology and innovation strategy, quality education to
foster innovation, policies to foster research, development and
demonstration, good governance, integration of culture into development.

The discussion under policies to foster research, development and
demonstration section prescribes two sets of action to improve innovation
in science and technology. First, the Report proposes public funding and
tax measures to strengthen science, technology and innovation. Secondly, it
calls for strong IP protection to attract investment in innovation.  The
Report states:

“Another way to boost the attractiveness of innovation investment and
improve the prospects for science, technology and innovation is through
strengthening the role of the intellectual property regime. The innovation
process involves a range of risky research activities that eventually
generate information with public good characteristics. Unless individual
firms can profit from this information, they will not undertake the
necessary investments. Through the intellectual property regime,
governments can provide the incentives for firms and individuals to
undertake creative and innovative activity by enabling them to obtain
exclusive ownership of their findings for a period of time. In industry,
patent and utility models protect inventions with industrial application,
industrial designs protect novel designs, trade secrets protect
confidential business information and trademarks protect the source of a
good of one party from those of other parties”.

[According to an expert on IP and development who studied the Report,
evidence that a strengthened IP regime can boost investment or prospects
for science, technology and innovation is severely lacking. On the other
hand, there is extensive evidence that a strengthened IP regime can hinder
access to tools that are much needed to achieve development objectives,
such as technologies, research and educational materials, medical products.
Moreover, historically developed countries and more advanced developing
countries have relied on the absence of IP protection to acquire
technologies and boost local innovative and productive capacities.  Clearly
the Report has failed to grasp and fully appreciate the complex
relationship between IP and development. It has also failed to acknowledge
that excessive IP protection, currently being advocated through
international organizations (e.g. WIPO), north-south bilateral trade
agreements and inappropriate technical assistance can have devastating
consequences for improving scientific, technological and innovative

Further, the discussion in this part of the Report does not elaborate on
the implications of the WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) and the Agreement on Trade-Related
Investment Measures (TRIMS) on policy space on science, technology and
innovation. The Report merely remarks, “Both agreements have considerable
implications for permissible science, technology and innovation policies at
the national level”.

On IP reforms the Report cursorily states: “There have been calls for a
dialogue on intellectual property regimes and the possible evolution of
their focus from protection of innovation to one that fosters its

The only reference to technology transfer and IP in the Report is in only 3
sentences, which read: “In WTO, within the Council for TRIPS and the
Working Group on Transfer of Technology, there is also an ongoing debate
over technology transfer and the patent system. It relates to the
implementation of article 66.2 of the Agreement, which requires developed
countries to provide incentives to entities located in their territories in
order to promote and encourage the transfer of technology to the least
developed countries. Current debates about technology transfer and the
environment therefore raise the question of whether this amounts to another
intellectual property and technology transfer debate, or whether
environmentally sound technologies present distinctive challenges.”

The Report also fails to reveal the failure of developed countries in
fulfilling their obligations under Article 66.2 to transfer technologies to
LDCs, a contention that is consistently raised by developing countries in
numerous fora.

*Culture and poverty in sustainable development*

The Report offers IP protection a solution to address one of the ways of
using culture for poverty reduction. According to the Report, “creative
industries flourish where there is an appropriate regulatory framework and
broad respect for culture and creative work within society. Intellectual
property rights, guaranteeing the return of value to creators and enabling
widespread access to content by the public, are fundamental to this
framework. Such rights also generate income and employment, often with a
direct impact on disadvantaged groups”. Therefore the Report advocates for
IP protection for traditional knowledge and states:

 “Existing intellectual property rights, as well as *sui generis* rights
based on intellectual property principles and systems, are important in
protecting traditional knowledge from misappropriation and in equitably
sharing benefits resulting from commercialization. Intellectual property
systems should be tailored so as to promote technology dissemination and
the protection of knowledge of indigenous and local communities”.

The Report also advocates IP in the context of indigenous culture and
states: “… intellectual property rights are of fundamental importance to
valuable cultural and economic assets of the indigenous and local
communities who maintain, practice and develop them”. It further stresses
the need for copyright protection, asserting that “In the era of the
digital environment, greater emphasis needs to be placed on the exercise
and management of rights, on the one hand, while, on the other hand,
ensuring greater access to and sharing of creative works globally. Support
through policy, law, copyright infrastructure, institutional collaboration
and better business models is essential.”

An expert observes that discussion in the Report is focused on the
importance of IP to protect misappropriation of traditional knowledge,
failing to acknowledge that the existing IP system is in many cases a
channel for misappropriation of traditional knowledge and cultural
expression. Unfortunately, the Report is also silent on the consistent
failure of the international community to take effective steps to modify
the existing IP system to minimize such misappropriation.

*Public Private Partnership *

The Report proposes public private partnership (PPP) in Section V, which
discusses the strengthening of multi-stakeholder collaboration, and
partnership.  In order to promote PPP in the culture sector the Report
states: “While the public sector puts in place systems that would support
the management and exploitation of intellectual property assets, the
private sector can contribute necessary resources to make cultural
activities and products profitable.”

*Open Innovation*

Part II of the Report describes the global context of science, technology,
innovation and culture. The first section of Part II explains open
innovation, which is however portrayed with a particular understanding of
the concept. The general understanding of open innovation is that it
promotes a collaborative platform for research and development (R&D) and
the outcomes are available for use without any intellectual proprietary
rights restrictions. However, the Report describes open innovation as R&D
innovation based on network models not devoid of IP protection.

According to the Report, “These innovation models place emphasis not on
knowledge within an enterprise, but on untapped knowledge outside the
enterprise, increasing the value of collaborative research on communication
tools and newly developed networks of people. Such networks can be
systemically organized or developed in an *ad hoc* manner among individuals
who have the necessary expertise and knowledge.”

However, according to the Report talks about “managing the fruits of that
innovation, including through transferring knowledge to geographical
regions that can benefit, creating policies and structures that encourage
such innovation, protecting the innovative results through intellectual
property and other mechanisms, and creating education and training
programmes for those who will generate or commercialize the new products
and services”.

*Internationalization of R&D*

Part II of the Report also contains the discussion on the
internationalization of R&D. It stresses that, “Strengthening research,
development and innovation can promote economic growth and competitiveness,
but one of the principal challenges is ensuring that the results of
research and development infrastructure used by commercial entities for
knowledge creation and innovation are directed towards sustainable

However, the Report opposes open access to information and methodologies to
promote research and development activities. It suggests: “Additionally,
promoting the commercialization of research and development activity could
result in the application of intellectual property rights to support new
technology-oriented firms, rather than allowing open access to information
and methodologies. One positive effect is that internationalization of
research and development is associated with increased investment in high
quality infrastructure for research and development, particularly at higher
education institutions, which benefit students and also attract
professional workers in research and development, contributing to building
human capital”.

*South-South Cooperation*

Part IV of the Report discusses the importance of South-South cooperation
to create an enabling environment at the international level, i.e. the
enabling environment for the transformative change towards sustainable
development through science, technology, innovation and culture. Here, for
the first time, the Report mentions the need for balance in IP but without
any further elaboration.  It states: “Improving access by developing
countries to existing and new technologies, and promoting the development
of their own technological capabilities remain important components of
establishing balanced and equitable knowledge-based global markets. As part
of the innovation ecosystem, the promotion of a balanced legal and
administrative framework of intellectual property protection is also
crucial to promoting and incentivizing innovation, investment and
technology transfer”.

The Report is completely silent on the implications of IP rights on
development, especially in the context of the MDGs connected to health,
especially Goals 5 and 6 viz. improve maternal health and combat HIV/AIDS,
malaria and other diseases.  There is no discussion on intellectual
property and access to medicines, a priority that has been on the UN agenda
for several years.

The Report similarly ignores various reports on the barriers erected by IP,
especially patents, on accessing climate-friendly technologies. Further,
there is absolute silence on the implications of IP protection for access
to food and safe water.

(See WIPO study that includes patents on water purification technology:

In 2012, the MDG GAP Taskforce Report clearly expressed concerns on IP and
access to medicines, especially on the “TRIPS plus” provisions. It stated:
“TRIPS plus provisions that may have an impact on public health or may
hamper the use of flexibilities have included placing restrictions and
limitations on the right to issue compulsory licences; providing for patent
extensions or supplementary protection; requiring drug regulatory
authorities to consider the patent status of medicines before granting
marketing authorizations to generic manufacturers; requiring test data
protection that restricts the use of clinical test data on pharmaceutical
products by drug regulatory authorities for the approval of generic
medicines for a certain period of time; and allowing patent holders to
restrict parallel imports, which may prevent developing countries from
buying medicines from the most affordable international source.”

The Outcome Document of the UN Conference on Sustainable Development
(Rio+20) acknowledged the implications of IP on technology.  The Report for
the ECOSOC ministerial review ignored these concerns completely.

The Rio+20 Outcome Document also emphasized the importance of access to IP
on favorable terms. Paragraph 269 clearly states that, “We emphasize the
importance of technology transfer to developing countries, and recall the
provisions on technology transfer, finance, access to information and
intellectual property rights as agreed in the Johannesburg Plan of
Implementation, in particular its call to promote, facilitate and finance,
as appropriate, access to and the development, transfer and diffusion of
environmentally sound technologies and corresponding know-how, in
particular to developing countries, on favorable terms, including on
concessional and preferential terms, as mutually agreed” .

The MDG outcome also document clearly emphasised “Promoting the strategic
role of science and technology, including information technology and
innovation in areas relevant for the achievement of the Millennium
Development Goals, in particular agricultural productivity, water
management and sanitation, energy security and public health. The capacity
for technological innovation needs to be greatly enhanced in developing
countries, and there is an urgent need for the international community to
facilitate the availability of environmentally sound technologies and
corresponding know-how by promoting the development and dissemination of
appropriate, affordable and sustainable technology, and the transfer of
such technologies on mutually agreed terms, in order to strengthen national
innovation and research and development capacity”.

The Report further ignores the Development Agenda adopted by WIPO Member
States in 2007 to address the developmental concerns related to IP
protection and enforcement. It is silent on the development implications of
IP, especially the barriers created by IP in accessing technologies and
instead proposes a strong dose of IP protection to achieve all MDGs.

It is disconcerting that the Report did not take into account concerns
expressed by various organisation through their submissions, at the request
of the Secretariat to prepare the Report. The website of ECOSOC claims that
“the Secretariat requested inputs and information on relevant programmes
from across the UN system”.

The Committee on Development Policy (under the UN Department on Economic
and Social Affairs) made a submission at the request of the Secretariat.
The Committee’s submission clearly expressed concerns on IP in the
dissemination of technology and the international IP regime (
http://www.un.org/en/ecosoc/newfunct/pdf13/sti_cdp.pdf). Regarding the IP
regime the submission stated:

“Achieving a balance between the need to provide incentives for the
generation of knowledge and innovation and the need to facilitate access to
knowledge and innovation is not easy.

“In this regard, the role that intellectual property rights play in the
technological development of a country has long been the subject of an
intense debate.

“Since the 1980s, those in favour of greater uniformity and protection for
IP rights succeed in defining the IP regime with an agenda of global
harmonization of national rules, which has implied in a more restricted
policy space for developing countries, thus placing the late developers at
a disadvantage as the policy tools and approaches used by other countries
–including developed countries themselves—in the past are no longer

Further, regarding the negative impact of IP on technology dissemination
the submission stated:

“More recently, however, there have been revived concerns about the
negative effects of the current IP system and recognition that the IP
system needs to evolve to foster dissemination of technology, including by
allowing countries to have room to tailor their own national IP system to
their specific development needs. In this regard, patent based regimes are
not necessarily compatible with the technological development stage of many
developing countries and may deter innovation in these countries”.

Similarly, the Report ignored the UNCTAD submission, which clearly stated
that, “trade rules, intellectual property rights and investment can offer
opportunities but also be hindrances in promoting technological change”.

UNEP also warned on the IP implication on technology transfer. According to
the UNEP submission, “Criticism exists of the high transaction costs of
obtaining information or negotiating and acquiring technologies protected
by intellectual property rights. According to *GEO 5*, it has been argued
that there may be a need for beneficial differentiation in patent rights
such as expedited patent examinations in environmentally sustainable
technologies, and the facilitation of voluntary patent pools”.

Unexpectedly, the advocacy for IP protection came from UNIDO. Its
submission on IP is clearly reflected in the Report. The UNIDO submission
states: “Another way to boost the attractiveness of innovation investment
and improve the prospects for STI (science, technology and innovation) is
through strengthening the role of the Intellectual Property Regime. The
innovation process involves a range of highly risky problem solving
activities that as the process evolves generate information with public
good characteristics. Individual firms cannot appropriate to their benefit
this information and hence, do not undertake the necessary investments”.

Interestingly, there was no submission from the WHO although expert reports
including by the Commission on Intellectual Property, Innovation and Public
Health (CIPIH) and Consultative Expert Working Group (CEWG) of the WHO have
addressed in detail the link between IP and innovation and health. These
reports reveal the failure of the IP system, especially the patent regime,
to meet the health R&D needs of developing countries which are part of the

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