Towards development Oriented Technical Assistance in Intellectual Property Policymaking
by David Vivas & Christophe Bellmann
Introduction
Technical assistance for intellectual property (IP) gained relevance during the mid-1970s when a growing number of developing countries started to join treaties administered by the World Intellectual Property Organisation (WIPO). After the adoption of the Uruguay Round package of agreements and more specifically the TRIPS Agreement, developing countries’ need for IP-related technical assistance increased sharply. The fact that the Agreement contained relatively high new minimum standards of protection and enforcement – and was subject to the Dispute Settlement Understanding of the WTO – made policy-makers in the developing world understandably concerned about their capacity to fulfil obligations once their countries’ transitional period for fully implementing TRIPs started to lapse in 2000.
Following the adoption of the TRIPS Agreement, new and important resources have been channelled to assist developing countries in its implementation. These have included assistance from multilateral institutions (WTO, WIPO, UNCTAD and UNDP, among others), bilateral donors (development co-operation agencies and national IP offices), philanthropic donors (foundations), as well as non-traditional providers, such as think tanks, research centres, academia and civil society organisations. These actors have delivered technical assistance on policy-making, legal reform, intellectual property rights (IPRs) administration, regulation and enforcement (Leesti & Pengelly, 2002).
The need for technical assistance has greatly expanded in recent years due to the very detailed IP chapters included in an ever increasing number of regional and bilateral trade agreements involving developed and developing countries. These ‘new generation’ agreements contain IP protection standards close to – and sometimes higher than – those currently applied in some developed countries and will bring many implementation challenges for the developing countries that decide to follow this avenue.
Various authors (Kostecki and Solignac Lecomte 2001) have argued that technical assistance provided by the main donors so far has only partially helped create sustained capacities in developing countries to fully assess the technical and political implications of complex trade agreements and participate actively in international negotiations. Similarly, the UK Commission on Intellectual Property (CIPR) Report concluded, after analysing the main current IP related technical assistance programmes and assessing their impact, that the results of those activities were neither commensurate with the efforts and resources spent so far nor always responsive to actual developing country needs (CIPR, 2002).
This study was commissioned as a background paper in the area of pro-development and pro-competitive IP policy-making, legal standard-setting and participatory processes in technical assistance for the DFID-sponsored IPR technical assistance workshop to be held in Burnham Beeches, UK, 15 and 17 of September 2004. It identifies the main concerns expressed over the provision of IP technical assistance and suggests possible ways and means to address them. It does not pretend to be exhaustive but rather to explore some options to integrate sustainable development concerns in the design, delivery and assessment of IP related technical assistance.