Professor Mark Schultz from Southern Illinois University School of Law reports on the second day (June 12th) of the Development Agenda meetings at the World Intellectual Property Organization (WIPO) being held this week in Geneva.
Please click here for the agenda of the meetings.
Some Background on Process
Please bear with me as I outline a few details about the process at the latest Development Agenda meetings. Although process never makes for exciting reading, this process is likely to have a significant impact on the substantive results—perhaps an undesirable one.
The parties are off to a rather efficient start. As noted in my earlier report, the chair of the meeting, Ambassador Trevor Clark, has proven to be an effective manager. He has streamlined what was previously an often frustrating and ineffective process. He has assigned a “cluster” of proposals to each regional group (see the end of this report for a listing of clusters and the group responsible). Each group has been responsible for offering a compromise proposal. Those proposals are then being negotiated into final form by a limited group of people (about 30)—each regional coordinator, plus a few more parties from each regional group. The negotiations are being conducted privately, away from the assembly room.
As I said, this process is very efficient, but efficiency is not necessarily the most important goal. First, this process is not very open. Traditionally, WIPO has been very open and consensus-driven. Of course, it has often been very slow-moving as a result. Limiting the number of negotiating parties naturally moves things along faster. I expect that the results will make a great difference as to how a particular commenter views the less open, less democratic nature of this process. There is some irony in the fact that this process just produced agreement on a proposal that “WIPO shall conduct informal, open and balanced consultations, as appropriate, prior to any new norm-setting activities . . . .”
More important, I think, is that this is an instance where process has an effect on substantive results. The parties are negotiating as regional groups. This makes it more difficult to assert an unreservedly strong, national position. For example, the United States is negotiating as part of Group B (which includes most developed countries). Positions taken during the negotiation among groups are the product of compromise within each group. In the end, this dynamic likely favors a largely middle of the road approach.
Some question whether the proposals being considered this week warrant a middle-of-the- road approach. A year ago, there were 111 proposals on the table. Forty were acceptable to everybody. Seventy-one were not. The 40 acceptable proposals were already discussed in February. This week's meetings are addressing a condensed version of the 71 unacceptable proposals from last year. The discussion regarding the 40 acceptable proposals is closed. It will not be re-opened, so there will be no bargaining or horse-trading between the 40 widely-supported proposals and the 71 controversial proposals. Essentially, the parties have put aside their points of agreement and are now discussing their points of disagreement in a process that is bound to produce compromise.
There were several reasons why the proposals rejected last year were viewed by many as unacceptable. First, they often proposed to extend WIPO's mandate beyond intellectual property to promote alternatives and exceptions to intellectual property. They would even require WIPO to assist countries with negating intellectual property rights through using compulsory licensing, just as the Thai military junta recently did. Second, some thought they were also often patronizing, requiring WIPO to instruct developing nations to consider the public interest—which is apparently assumed to be in conflict with intellectual property. Finally, the premise of many of these 71 proposals is that intellectual property is problematic at best, often in conflict with the public interest, and something that ought to yield to more centralized government-led and non-proprietary strategies.
Compromise might render some of these 71 proposals quite reasonable, but the question is whether a number of country delegations will ultimately conclude that the initiatives are better rejected entirely. A process that naturally favors compromise will probably allow far more of the unacceptable proposals to survive.There are, of course, two points of view on this. For those who favor a substantial weakening of intellectual property and greater role for government intervention into private ordering, this new process is laudable. For those who favor private rights, compromise with such a position will be viewed as disappointing.
The results announced thus far do indicate that the original 71 proposals have been significantly softened, but compromise is likely to allow the final result to be far more skeptical of intellectual property than would have occurred otherwise.
Results of Negotiations on Cluster A
Cluster A addresses technical assistance to developing countries. The negotiations were led by the Group of Latin American and Caribbean countries (GRULAC). The following text was announced:
Cluster A, Annex B
- To assist Member States to develop and improve national IP institutional capacity through further development of infrastructure and other facilities with a view to making national IP institutions more efficient and promote fair balance between IP protection and the public interest. This technical assistance should also be extended to sub-regional and regional organizations dealing with IP.
- To assist Member States to strengthen national capacity for protection of domestic creations, innovations and inventions and to support development of national scientific and technological infrastructure, where appropriate, in accordance with WIPO’s mandate.
- To further mainstream development considerations into WIPO’s substantive and technical assistance activities and debates, in accordance with its mandate.
- WIPO’s legislative assistance shall be, inter alia, development-oriented and demand-driven, taking into account the priorities and the special needs of developing countries, especially LDCs [least-developed countries], as well as the different levels of development of Member States and activities should include time frames for completion.
- Within the framework of the Agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs on the implementation and operation of the rights and obligations and the understanding and use of the flexibilities contained in the TRIPS Agreement.”
Probably the most consequential of these provisions is the fifth. The original text proposed to have WIPO give advice on using compulsory licensing of intellectual property to “gain access to essential medicines and food.” While the text has been significantly softened, it still mandates that WIPO give advice on implementing “flexibilities” under TRIPS. Of course, the TRIPS agreement, like other international IP agreements, is flexible, as it allows for a great deal of leeway to countries in crafting their own approaches to implementing its obligations. The difficulty here is that “flexibilities” has become a common euphemism for employing compulsory licensing against patents, as activists apparently seek to normalize the practice.
Cluster A (technical assistance and capacity building) is the responsibility of GRULAC; cluster B (norm-setting, flexibilities, public policy and public domain), the African Group; cluster C (technology transfer, information and communication technology (ICT) and access to knowledge), the Asian Group; cluster D (assessments, evaluation and impact studies), the Central European and Baltic States; cluster E, (certain organizational matters), Group B developed countries; cluster F (institutional matters including mandate and governance), Russia and the Group of Caucasian, Central Asian and Eastern European Countries.