Intellectual Property Programme • Volume 13 • Number 34 • 7th October 2009

WIPO Looks to Engage on Global Challenges, but How Much Can it Deliver?

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The recent annual meeting of the World Intellectual Property Organization (WIPO) signalled the organisation’s eagerness to be at the centre stage of efforts to address challenges facing the global IP system. This year’s General Assemblies, which lasted from 22 September to 1 October, were chaired by Ambassador Alberto Dumont of Argentina. For the first time ever, the meetings included a high-level segment that brought together more than 40 ministers, who shared their perspectives and national priorities on the role of IP in economic growth and development.

In his opening statement, WIPO Director-General Francis Gurry provided an overview of the changes he has introduced in the organisation since assuming his post last year. He also discussed some of the ways that WIPO could address several of the global challenges facing the IP system, which is in the midst of a “long term trend of steady intensification in the use of intellectual property,” he said.

As a reflection of this trend, Gurry pointed to the increasing number of countries that are seeking to establish national innovation and intellectual property strategies. WIPO would “promote the greater use of these strategies as vehicles for the delivery of capacity-building activities,” he added.

Turning to the establishment of norms on intellectual property, Gurry appealed to member states “to find a balanced way forward.” “If [WIPO] is to retain its relevance in rule-making …It must be able to make rules both for the latest advances in technology and for traditional knowledge systems,” he said.

Agreement on traditional knowledge mandate after difficult negotiations

Traditional knowledge proved to be the most contentious issue in this year’s meetings. The Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions (known as the IGC) was not able to agree on its future mandate at its July session, leaving the matter to be decided at the Assemblies. Discussions in the IGC have been taking place for several years but have thus far not delivered any tangible results in terms of norm setting.

Against this backdrop, the African Group maintained that, under the committee’s new mandate, negotiations should move towards a “legally binding” instrument, a position supported by many Latin American and Asian countries. But developed countries were of the view that the mandate should not predetermine the nature of the instrument to be discussed. In the view of the United States, for example, the committee should simply “work towards a convergence of views.” For its part, the EU had submitted a proposal for a renewed mandate that included the adoption by the General Assembly of a declaration on the value of traditional cultural expressions and genetic resources and their protection against misappropriation.

After intense consultations, a compromise was finally reached in which the IGC would undertake “text based negotiations” with the objective of reaching agreement on an international “legal” instrument (or instruments) that would ensure the effective protection of genetic resources, traditional knowledge, and traditional cultural expressions. The 2011 session of the General Assembly would then decide whether to convene a diplomatic conference on the matter.

Gurry described this as “a real step forward” for the organisation and member states expressed their satisfaction to see that consensus was finally reached. Some observers wondered about the practical significance of the renewed mandate, pointing out that ultimately only the political will of all countries could lead to the conclusion a legally binding international instrument. After all, such observers noted, the convening of a diplomatic conference has eluded other norm setting issues for years, as in the case of the broadcasting treaty.

Implementation of the Development Agenda:  A Key Priority

Many delegations stressed in their interventions that the implementation of the WIPO Development Agenda should be a key priority for the organisation. In this regard, Gurry called for a “collaborative effort and engagement on the part of the member states and the secretariat to achieve a more ambitious implementation.”

“We need to identify and execute projects that make a difference, and that are not just a continuation of standard technical assistance under another guise,” he added.

In his statement, the Brazilian Ambassador underlined that “a key element to strengthening the role played by WIPO is to make progress in the implementation of the Development Agenda.”

The EU reaffirmed its commitment to the implementation of the WIPO Development Agenda (DA) recommendations and indicated that progress had been achieved in the Committee on Development and Intellectual Property (CDIP), which proved the ability of member states to “build common ground.” The United States did not make any specific mention of the WIPO Development Agenda in its general statement.

Many countries, particularly developing countries, emphasised the need to agree on a mechanism for coordination, assessing, monitoring and reporting on the implementation of the DA recommendations and to ensure adequate budgetary resources for such implementation.

Developing countries also highlighted the relevance of the WIPO DA principles in different areas of work of the organisation, in particular in relation to any reform of the Patent Cooperation Treaty (PCT).

More broadly, some countries flagged the need for institutional reform for WIPO to effectively deliver the changes required by the Development Agenda. In this regard, the Deputy Minister of Trade and Industry of South Africa suggested that WIPO’s mandate “should be revisited in order to align it properly with the broader objectives of the United Nations.” Egypt called for consideration of “institutional reform of WIPO that encompasses its governing bodies and the various committees, including substantive committees, in a comprehensive framework that reflects the active participation by developing countries.”

Addressing Global Challenges: Yes, but How?

Member states, in general, welcomed WIPO’s growing engagement on global policy challenges, such as climate change, public health and food security. However, it was not clear what that engagement should look like, given the diversity of views on the appropriate responses to these challenges, including within and between different United Nations agencies where intellectual property has emerged as a contentious issue.

In this regard, the Deputy Minister of Trade and Industry of South Africa stressed that UN agencies dealing with development issues should harmonise their work on intellectual property.

Climate change illustrates the difficulties facing WIPO’s leadership. On one hand, the organisation wishes to affirm the centrality of its role in addressing global challenges. But at the same time, WIPO can only provide policy responses that will be widely supported by its membership.

In an interview with the Financial Times in March 2009, Gurry stated that “WIPO does not want to “wait passively” for climate change technology to become mired in the kind of acrimonious public debate that has beset pharmaceutical patents.” He also mentioned plans to explore the possibilities of creating an “open innovation” platform where companies would pledge to licence green technologies “on fair, reasonable and non-discriminatory terms.”

At the WIPO Conference on Intellectual Property and Public Policy Issues last July, Gurry’s presentation was confined to a classical view of the role of the patent system in facilitating technology dissemination and did not refer to the suggestions previously mentioned.

In his opening statement to the Assemblies, Gurry insisted that intellectual property would not serve as an obstacle to technology transfer as countries struggle to reduce greenhouse gas emissions. “Intellectual property has a very positive contribution to make to our efforts to develop green innovation,” he said.

Such mixed messages reflect the need for member states to provide guidance on the exact terms under which WIPO should engage, in coordination with relevant multilateral bodies, in order to deal effectively with these global policy issues.

ICTSD reporting; “UN agency targets clean technologies,” THE FINANCIAL TIMES, 5 March 2009.