US Vows to “Fight” the Push for WIPO Reform

In an October 15 speech, the Director of the US Patent and Trademark Office (USPTO), Jonathan Dudas, vowed that the U.S. government will “fight” proposals that aim to “fundamentally change the WIPO charter and philosophy” away from its current focus on the promotion of intellectual property.

In his keynote remarks at the Annual Meeting of the American Intellectual Property Law Association (AIPLA – a 15,000-member U.S. bar association comprised primarily of intellectual property lawyers) Dudas stated emphatically that “our current system and international norms are properly balanced”. In a not-so-oblique reference to recent discussions at WIPO of a ‘Development Agenda,’ Dudas derided efforts to encourage WIPO to take a more balanced approach to intellectual property as part of a “strategy to water down intellectual property protection” that is “even worse” than efforts to increase PCT application fees.

The USPTO’s comments come hot on the heels of a landmark decision by WIPO’s 2004 General Assembly to adopt a Development Agenda. Negotiations on which provisions to include in the decision were heated. While the General Assembly’s decision attracted broad support, it side-stepped addressing many aspects of the original Development Agenda proposal submitted by Brazil and Argentina and co-sponsored by fourteen other developing countries (see Boxes 1 and 2).

Alluding to the 1974 Convention between the United Nations and WIPO—which mandates that WIPO promote “creative intellectual activity and facilitate the transfer of technology relating to industrial property to developing countries with a view to speeding up their economic, social and cultural development”—the Development Agenda proposal is the most forthright expression to date of developing country concerns about increasing pressure for stronger intellectual property protection.

Introducing the proposal at the Assembly, the delegation of Brazil described the Development Agenda objectives as of ‘global interest,’ noting that they should neither pitch developing against developed countries nor ‘polarise’ debate. Concurring that development is a shared concern for the international community, no delegation disputed the underlying thrust of the proposal—that intellectual property ought to be used in ways that advance development. The proposal did, however, stimulate debate on a range of conceptual issues and political differences that, surprisingly, had not previously been tabled by WIPO Members for specific discussion.

WIPO’s Track Record

A core issue in the discussion concerned WIPO’s effectiveness in working to advance development objectives. On the one hand, India argued that “developed countries continue to pay lip service to ‘development’ in the context of intellectual property protection.” The United States contested such claims, arguing that “the notion that WIPO has disregarded the development dimension [is] likewise untenable (…) WIPO clearly [has addressed] and [continues] to address the development dimension in its work.” Speaking on behalf of the European Union (EU), the Netherlands noted that WIPO was already working to address many of the concerns expressed in the proposed Development Agenda, particularly through its expanding program of technical assistance and in that sense should “continue its good work.” The EU did, however, note that cooperation with developing countries could perhaps be strengthened and suggested that “it would be timely for WIPO to evaluate and assess the contribution of the Organization towards achieving the Millennium Development Goals, including its program on technical cooperation.” While many advocates of the Development Agenda proposal also acknowledged the importance of WIPO’s technical cooperation activities to their countries, Uruguayan representative Guillermo Valles appeared to capture a widely-shared sentiment when underlining that the development focus should not be limited only to technical assistance or cooperation.

The debate at the Assembly also highlighted sharply contrasting views on the question of the relationship between intellectual property and development. The United States explicitly expressed its disagreement with the assumptions of the proposal, noting that “it appears to be premised on the misconception that strong intellectual property protection might be detrimental to global development goals and that WIPO has disregarded development concerns.” The Indian delegation, on the other hand, emphasised the need for an ongoing effort to narrow different interpretations of what a ‘development’ oriented approach would mean for WIPO, arguing that the “term ‘development’ as used by [developed countries and] WIPO, mean[s] quite the opposite of what developing countries understand when they refer to the development dimension.”

Providing a concrete example of what a stronger development focus might entail, South Africa noted that the international approach to intellectual property rights must “have a tangible benefit for both the rights holders and a broader society, particularly parties that [are] in most need of technological advancement and protection of indigenous resources.” On a similar theme, India elaborated that a true Development Agenda would “need to take into account any possible negative impact on the users of intellectual property, on consumers at large, or on public policy in general, not just the promotion of the interest of intellectual property owners.” The delegation of Canada, on behalf of Group B (i.e., an informal grouping composed of Australia, Canada, the European Union, Japan, Monaco, New Zealand, Norway, Switzerland, Turkey and the United States), seemed to make some effort to bridge the gap, suggesting that “WIPO’s work should help to support the multilateral development of intellectual property, not as an end in itself, but as a means to help achieve the economic, social and cultural well-being of individuals and societies.”

Civil Society Support for the Development Agenda

In the weeks leading up to the WIPO Assembly, the demand for fundamental reform had intensified on several fronts. Following an international conference on the ‘Future of WIPO’ organised by the Transatlantic Consumer Dialogue, over 500 consumer, health and development advocates, scientists, economists and legal experts, including two Nobel Laureates issued “The Geneva Declaration on the Future of WIPO.” Keen to bolster support for developing countries, NGOs also issued a statement “Supporting the Establishment of a Development Agenda for the WIPO.” The civil society recommendations included calls for the reform of WIPO technical assistance programs, increased civil society participation in WIPO’s work, a moratorium on new treaties or harmonization efforts, and support for a Treaty on Access to Knowledge. Arguing that, to date, WIPO has responded primarily to the “narrow concerns of powerful publishers, pharmaceutical manufacturers, plant breeders and other commercial interests,” the Declaration emphasized that WIPO must also adopt a greater focus on advancing development objectives, protecting consumer rights and controlling anti-competitive practices.

The Decision and Next Steps

The negotiations on the final Development Agenda decision took place behind closed doors. Whereas some countries had feared that any adoption of the Development Agenda would require a complex set of trade-offs among the various items on the General Assembly’s agenda, the actual discussions were remarkably self-contained. Ultimately, the General Assembly agreed to “convene inter-sessional intergovernmental meetings” which would examine the Development Agenda proposals and report to the 2005 General Assembly, where the larger agenda would be discussed. The co-sponsors’ original proposal, which called for the creation of an ad hoc “inter-sessional Working Group on the Integration of the Development Dimension in WIPO,” was not endorsed. Furthermore, the proposal for a “Special International Conference” was rejected in favour of a “joint international seminar.”

While affirming that the decisions taken at the Assembly were indeed “a small, but positive step for WIPO,” Brazil noted that it “would have liked to have had adopted [the proposals for action contained in the document originally submitted].” Martin Khor of Third World Network called the Development Agenda decision a “significant step forward for developing countries.” Adding the voice of consumer advocates, Anna Fielder of Consumers International welcomed the decision as “good for creators and consumers like.” For James Love of the Consumer Project on Technology, the decision “represents a change in culture and direction for WIPO.” It is precisely this potential for reform that the United States, as noted above, appears determined to quash.

In the days immediately after the Development Agenda decision, the WIPO Secretariat reported that it was already at work on a strategy for its implementation. Among advocates of WIPO reform, attention is now shifting toward ensuring that the decision does indeed generate a thorough and substantive debate about the relationship between development and intellectual property.

Warning that the ‘maximalist rights agenda’ is not good policy even for the developed world, James Boyle, a Law Professor at Duke University argues that the Development Agenda must incorporate a focused discussion of the need for balance in intellectual property policy. “Even where intellectual property rights are the best way to promote innovation, and there are many areas where they are not,” Boyle contends that “it is only by having rules that set the correct balance between the public domain and the realm of private property that we will get the innovation we desire.” The Free Software Foundation of Europe’s proposal to replace WIPO with a ‘World Intellectual Wealth Organisation’—one dedicated “to the research and promotion of novel and imaginative ways to encourage the production and dissemination of knowledge”—aimed to push the debate further. Even as civil society groups and interested experts debate tactics and strategies, they appear united behind the goal of promoting an open, informed discussion of the range of options for stimulating creativity, innovation and affordable access to technologies.

The Development Agenda Proposal Adoption of a Declaration on Intellectual Property and Development Amendments to the WIPO Convention to include provisions on technology transfer, anticompetitive measures and safeguarding public interest flexibilities in the treaties under negotiation Strengthening of national intellectual property offices Creation of a Standing Committee on Intellectual Property and the Transfer of Technology Organization of a joint WIPO-WTO-UNCTAD international seminar on intellectual property and development Increased civil society participation in WIPO’s activities Creation of a Working Group on the Development Agenda

List of co-sponsors Final sponsors of the ‘Proposal for the Establishment of a Development Agenda for WIPO’: Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela.