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IntroductionIts first predecessor, the Bureaux Internationaux R้unis pour la Protection de la Propri้t้ Intellectuelle (BIRPI the United International Bureaux for the Protection of Intellectual Property), was created in 1893 to administer the Berne and Paris Conventions, but the World Intellectual Property Organization (WIPO) has been until recently little known and understood outside intellectual property (IP) offices. Its broad range of norm setting, administrative and technical assistance activities, however, fundamentally affect IP rules at both the international and national levels. As a result, and given a growing acknowledgement of the links between IP and sustainable development, awareness of the relevance of WIPO is increasing. As the international IP regime expands to include a diversity of multilateral agreements, international organizations, regional conventions and bilateral arrangements, WIPO remains one of its cornerstones. Indeed, the strategic importance of WIPO has only increased. For a certain time, as was discussed in Chapter 3, industrialized countries seeking higher levels of IP protection favoured putting IP discussions into the multilateral trade system to achieve minimum standards enforceable through its dispute settlement system. Nevertheless, WIPO has recently regained its role as the leading organization in multilateral IP norm setting, with several treaties currently being considered under its auspices. WIPO agreements, moreover, are often incorporated in other norms, as happened with the incorporation of the Paris and Berne Conventions into the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). It is now more and more common for them to be included in regional and bilateral trade agreements. Some of these commit signatories to sign up to future agreements to be concluded at WIPO (see Chapter 7). In addition, WIPO is highly influential, given the extensive technical assistance it provides or facilitates. The scope of such technical assistance is not limited to WIPO agreements, but extends to all IP concerns and implementation on which WIPO Member States may request support. In addition, on the basis of an agreement between WIPO and the WTO, WIPO provides legal and technical assistance to implement the TRIPS Agreement. Finally, as WIPO is the UN specialized agency on IP-related issues, it also collaborates with other UN agencies, which generally seek its guidance on these issues. The relationship, often controversial, between WIPO and other international organizations, particularly in relation to biodiversity and food security issues, will be discussed in Chapter 7. Through all these activities, WIPO has a profound impact on IP rules at both the international and national levels and thus on how these rules affect the conservation and sustainable use of biodiversity, the promotion of food security and other international sustainable development objectives. Nevertheless, these links have only recently begun to be considered in WIPO, an organization that has traditionally regarded its objective to be to increase levels of IP protection around the world. Current efforts to promote a more balanced approach to WIPO objectives, strategies and activities including on biodiversity and food security issues have necessarily had to address not only specific topics and discussions, but the organizational structure, culture and dynamics that limited WIPO's consideration of the links between IP and sustainable development. As discussions mount on WIPO reform, biodiversity concerns are at the forefront of some of the central demands for a more development-oriented approach to IP, including:
BackgroundIntellectual property rights (IPRs) are established solely by national laws and are therefore, in principle, only effective in their respective national territories. International recognition and protection of IPRs, however, is relevant for holders of IPRs seeking to exploit their protected products and works across national boundaries. International agreements, therefore, have traditionally responded to calls by industrialized countries for certain minimum levels of IP protection and for recognition of the IPRs of their nationals in other countries. WIPO, whose history dates back to the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention for the Protection of Literary and Artistic Works of 1886, has been instrumental in facilitating these efforts towards increased international protection of IP. WIPO replaced BIRPI in 1970, undergoing structural and administrative reforms, but primarily reflecting the growing importance placed on IP, which Member States agreed should be promoted throughout the world. Its work programme and activities have thus focused on the progressive development of IP rules. Indeed, as the US, the EU and other exporters of IP shift the standard-setting agenda to various fora in order to establish more extensive IP protection, WIPO's responsiveness to the needs of the industry and business sectors have made it a focal point of the process towards globalization of IPRs. In part, the close links between WIPO and IPR holders respond to a characteristic that distinguishes WIPO from most intergovernmental organizations and has a direct impact on its approach. About 90 per cent of WIPO's funding comes not from Member States but from the private sector, through the fees paid for the use of global IP protection systems which facilitate the registration of or filing for an IP right in several countries (IPRs Commission, 2002). The Patent Cooperation Treaty (PCT), one such system, for instance, accounts for 75 per cent of WIPO's total income. The largest users of the PCT system come from the US, Japan, Germany, the UK and France (WIPO, 2005). Although, as an intergovernmental organization, WIPO is answerable only to its Member States, concerns remain that, given its dependence on the business community for funding, WIPO tends to pursue the agenda of increasing IP protection and harmonization as its own (Shyamkrishna et al, 2004). Box 4.1 outlines WIPO's mandate, governance structure and operation and Appendix 2 (page 247) lists the three types of treaties it administers. Since 1974, however, WIPO has also been a UN specialized agency. As such, it has responsibility 'for promoting creative intellectual activity and for facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development'. Ongoing discussions about the WIPO Development Agenda, which will be discussed below, have questioned whether the links between IP and sustainable development are indeed considered in WIPO activities. Its publications and activities continue to espouse the view of IP as a 'power tool' for development, a 'universal value' that unreservedly contributes to the progress of societies. Technical assistance programmes of the Economic Development Sector at WIPO are aimed primarily at building up the legal and administrative infrastructure required to protect IPRs. As a result, civil society organizations have criticized WIPO for often acting as a 'church of intellectual property' rather than looking at IP as an instrument of public policy. A limited perspective on IP and sustainable development could be particularly problematic because, as opposed to early international IP rules that mostly codified already existing state practices and left many central concepts open for national interpretation, current efforts for increased international protection of IP rules seek provisions that significantly limit countries' policy space. As will be explained below, several instruments established or currently being negotiated in WIPO will result in significantly superior scope and levels of protection for IPRs. They will thus impact on national discretion to determine the types and scope of IPRs recognized, the limitations and exceptions to these rights, and the manner in which these rights are enforced. Several initiatives for international rules currently being debated at WIPO would indeed establish 'TRIPS-plus' standards, requiring signatories to implement more extensive standards and eliminating options and flexibilities currently provided by the TRIPS Agreement.
Selected WIPO Work Affecting Genetic Resources and TKAlthough the highest decision-making powers, particularly for norm setting, are held by the General Assembly, one of WIPO's governing bodies, substantive discussion and consideration of proposed rules or specific IP issues takes place in a range of WIPO committees. Discussions in three committees are particularly relevant for genetic resource and TK issues: the Standing Committee on the Law of Patents (SCP), the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and the Provisional Committee on Proposals Related to the WIPO Development Agenda (PCDA). The Standing Committee on the Law of Patents (SCP)Since 2000, work in the SCP has focused on the harmonization of substantive aspects of patent law; that is on the global standardization of substantive patentability requirements and criteria. In particular, some industrialized countries had put forth a proposal for a Substantive Patent Law Treaty (SPLT). The proposed SPLT would harmonize fundamental areas of patent law on which there are so far no international standards. The SPLT would eliminate the flexibility that WIPO Members enjoy, under existing international intellectual rules such as the TRIPS Agreement, to legislate in such areas. In this sense, its provisions can be considered 'TRIPS-plus', in other words going beyond the requirements agreed to in the WTO TRIPS Agreement. As a result, there has been significant opposition to such patent harmonization efforts by developing countries, with discussions now indefinitely suspended in the WIPO context. Nevertheless, substantive patent harmonization is still being addressed in formal meetings by the so-called Group B-plus developed member States of WIPO plus other countries in the European Patent Organisation. Substantive patent standards define, for example, the concept of 'invention' and the scope of protection granted by a patent. As a result, the proposed SPLT would, for example, by including a mandatory definition for the term 'invention', eliminate the available freedom for countries to determine the patentability for biological materials, including genes (Correa and Musungu, 2002). Currently, for example, living beings or 'biological materials found in nature' are not considered to be inventions in Brazil even if isolated from the organism. In the US, on the other hand, an isolated and purified form of a natural product is considered an invention and can be patented. Such positions are perfectly consistent with TRIPS, which does not include definitions of any of the terms used in the Agreement. For multinational companies with global markets, harmonized substantive patent law standards and eventually a global patent system would facilitate obtaining patents in different countries. In his 2005 written testimony on patent harmonization before the US Senate, Marshall C. Phelps, Jr, Corporate Vice President and Deputy General Counsel for Intellectual Property of the Microsoft Corporation, stated that:
The Director General of WIPO, Dr Kamil Idris, in the memorandum that launched discussions on the proposed SPLT, noted that:
Early discussions of the SPLT were characterized by an asymmetrical participation of developing countries. Topics such as the costs and benefits of harmonization, the balance between right holders and the public interests in the proposed provisions, and the relationship between the patent system and other policy and regulatory issues, however, have become increasingly raised by developing countries and civil society organizations. In particular, developing countries have emphasized the importance of adequately addressing issues related to genetic resources and TK. For example, in discussions on the requirements of patent applications involving genetic resources, proposed text has been submitted to require applicants to disclose source and country of origin, as well as compliance with prior informed consent. As discussed in other chapters, a major concern of developing countries about the international patent system is that it allows the granting of patents for inventions that use genetic material and associated knowledge without adequate consideration of the provisions of the Convention on Biological Diversity (CBD see Chapter 5). The need for disclosure requirements that would increase transparency, enhance patent examination and quality, and prevent the misappropriation of genetic resources and TK have come up in various fora, including the SCP. Nevertheless, given the broader concerns about the impact of patent harmonization on sustainable development, the focus of SCP discussions has not been on the issue of disclosure. Moreover, the discrepancies between developing countries and the countries home to the Trilateral Patent Offices the European Patent Office, the Japan Patent Office and the United States Patent and Trademark Office, where more than 85 per cent of all patent applications filed worldwide are processed eventually led to a deadlock in negotiations. As mentioned, discussions on the proposed SPLT are thus effectively suspended in the WIPO context. The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)WIPO began work in 1998 on the IP aspects of access to and benefit sharing in genetic resources and of the protection of TK and folklore, through consultations with stakeholders, such as indigenous peoples and other local communities, civil society, governmental representatives, academics and the private sector. When issues related to genetic resources were raised by developing countries in the context of other WIPO negotiations and discussions, however, some Members considered these issues required further exploration and discussion that could not take place in existing bodies in the organization (see also Chapter 3). As a result, in 2000 the WIPO General Assembly established the IGC as a forum in which discussions could proceed among Member States on IP issues that arise in the context of
Once their links with IP were defined and examined, the understanding was that they would be mainstreamed in broader WIPO negotiations. The IGC was welcomed by developing countries as a possibility to examine these issues and find solutions to satisfy Member States, and by indigenous peoples and other local communities (GRULAC, 2001). In particular, developing countries proposed that the IGC examine the extent to which IP systems could be adapted to improve their protection of genetic resources, TK and folklore; look at what new disciplines and provisions needed to be developed for a comprehensive protection of these resources at the international level; and devise and draft the necessary international instruments and model provisions for national legislative texts (African Group, 2001). The WIPO General Assembly eventually broadened the mandate of the IGC, instructing it to 'accelerate its work' and 'focus on the international dimension of IP, GR [genetic resources], TK and folklore', excluding 'no outcome, including the possible development of an international instrument or instruments in this field' (WIPO General Assembly, 2003). The work of the IGC has proven a valuable source of information, enhancing the understanding of the different dimensions and implications of the issues of genetic resources, TK and folklore. The IGC has examined various technical matters concerning IP issues in mutually agreed terms for the fair and equitable sharing of benefits arising from the use of genetic resources, including through model IP clauses for contractual agreements on access to genetic resources and benefit sharing. It has also focused on the defensive protection of genetic resources measures to ensure that IPRs do not allow the misappropriation of genetic resources. Its work has included technical studies on methods for requiring disclosure within patent applications consistent with WIPO obligations and the interrelation of access to genetic resources and disclosure requirements. This latter included options for model provisions and for procedures with regard to triggers of these requirements, prepared at the request of the CBD, as discussed in Chapter 7. On TK, the work plan has included terminological and conceptual issues, the use of IPRs for the protection of TK and the defensive protection of TK (Box 4.2). For example, a toolkit was developed for managing the IP implications of the documentation of TK. TK is being documented for a variety of reasons, including preservation, but documented TK may also be more readily accessed and used without authorization if certain safeguard measures which the toolkit explains are not foreseen. Moreover, the IGC is currently discussing draft provisions on the protection of TK from misappropriation that offer in a 'coherent and focused form the kind of specific questions that may need to be weighed by policymakers at national, regional and international level, when considering the appropriate form and means of protection' (WIPO, 2006b). However, there are increasing concerns on the part of developing countries that the work has not been successful in its primary objective, as it has not contributed to mainstreaming these issues, indeed that it may have proven a way to 'push them out of the way' both in WIPO and in other fora. Developing countries are still calling for an increase in the pace of negotiations and more focused and result-oriented debates. In addition, there are worries that the drawn-out discussions in the IGC are being used by some developed countries to detract from initiatives on IP and genetic resources and TK undertaken in other WIPO bodies and international fora. For example, interventions by the US at the WTO recognize the importance of the issues of genetic resources and TK, but insist they must be addressed in the IGC. Moreover, from other perspectives, there is concern from some that this is drawing indigenous groups into an IP approach that is inappropriate for dealing with the substantial social and economic concerns they have.
Nevertheless, the IGC has developed extensive expertise on some aspects of the relationship between IP and genetic resources and TK, and its work has contributed significantly to the awareness and knowledge available on these issues. It has also engaged a wide range of stakeholders in its work. Over 120 organizations including groups representing indigenous peoples and other local communities, non-governmental organizations, and groups representing industry and the private sector have been accredited to the IGC as ad hoc observers. Member States of WIPO, moreover, have set up a voluntary fund to facilitate the participation of indigenous and local communities in the work of the IGC. WIPO Member States also contribute to the work through IGC activities such as the analysis of relevant national and regional legal frameworks, case studies, surveys, and comments on various substantive documents, as well as through occasional proposals and submissions. As a result, the work of the IGC would play an important role in any comprehensive and effective steps to promote a mutually supportive relationship between the international IP regime and the protection of genetic resources and TK. To advance such steps, however, the work of the IGC requires increased focus on concrete measures to be taken at the international level and on supporting, rather than hindering, the related work taking place in other WIPO committees and other organizations. The WIPO Development AgendaThe WIPO Development Agenda was launched in 2004 as an attempt to ensure WIPO activities and IP discussions are driven towards development-oriented results. Given the relevance of the organization's mandate and governance to its work, as seen above, it is not surprising that these are key elements of the WIPO Development Agenda proposals. The Group of Friends of Development, which has spearheaded the Development Agenda process and includes Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela, has presented a number of relevant proposals (Friends of Development, 2005). One suggestion, for example, is to critically analyse and, if necessary, review the mandate to overcome any possible impediment to the Development Agenda's balanced implementation. The disparity between the WIPO Convention and the organization's mandate as a UN specialized agency, the misinterpretation of the development dimension as technical assistance, and the lack of guidelines for incorporating development concerns into all WIPO activities were proposed as some of the specific issues to consider. The Group of Friends of Development has also raised the need to strengthen the role of Member-driven structures in WIPO to avoid undue influence of IPR holders. Discussions have thus addressed potential changes to the current governance and oversight structures of WIPO, including through an independent evaluation and research office. More transparent and inclusive discussions would also require the increased participation of public interest non-governmental organizations in WIPO, which has traditionally focused its engagement with private sector groups (Figure 4.1). Initiatives such as the WIPO Development Agenda also highlight some of the institutional advantages of WIPO as a forum for IP and sustainable development issues. As the US and other developed countries shift to bilateral trade negotiations for IP standard setting, the collaboration among developing countries and civil society organizations that promoted sustainable development issues and culminated in the WIPO Development Agenda process becomes more difficult.
Figure 4.1 Perspectives on civil society participation in WIPO The WIPO Development Agenda process aims to ensure all WIPO activities adequately take into account development concerns. WIPO has now acknowledged the need to guide its work in light of the international development objectives established by the UN, including the Millennium Development Goals and the Johannesburg Declaration on Sustainable Development. The conservation and sustainable use of biodiversity, which plays a critical role in overall sustainable development and poverty eradication, is essential in achieving these development goals. The Johannesburg Declaration, for example, acknowledged the importance of biodiversity to human wellbeing and the livelihoods and cultural integrity of people, and stated that the loss of biodiversity can only be reversed if local people benefit from the conservation and sustainable use of biological diversity, in particular in countries of origin of genetic resources, in accordance with the CBD. Moreover, it called for actions at all levels to integrate the objectives of the CBD into global, regional and national programmes and policies, in particular in those of the economic sectors of countries (WSSD, 2002). The Conference of the Parties of the CBD, moreover, has noted that the achievement of the Millennium Development Goals is dependent on the effective conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. It thus urged parties, governments and relevant intergovernmental organizations, as a contribution towards the Millennium Development Goals, to implement their activities in ways that are consistent with, and do not compromise, the achievement of the objectives of the CBD (CBD, 2004). In addition, several of the specific Member State proposals have a direct link with biodiversity issues, particularly those of the African Group and the Group of Friends of Development in WIPO. For example, the African Group called on WIPO to examine the flexibilities under the TRIPS Agreement with a view to enabling developing and least developed countries to gain access to essential medicines and food. The African Group proposal states that:
The guidelines for norm-setting activities envisioned by the Group of Friends of Development, moreover, would require that all initiatives discussed at WIPO are compatible and supportive of other international agreements, including the CBD and the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA). Similarly, the assessment of the potential impacts of any norm-setting initiative would consider the effect on core development indicators such as access to essential products (seeds, for example), poverty alleviation, equity and protection of biodiversity. In June 2007, the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), which is where discussions on the WIPO Development Agenda had been taking place, in what was called a 'major achievement' for sustainable development issues at WIPO, agreed on a number of the proposals that had been put forth by various Member States. It thus recommended specific actions to the September 2007 WIPO General Assembly on issues such as technical assistance, norm setting, transfer of technology, studies on the impact of IP and institutional governance. In addition, the PCDA recommended the creation of a Committee on Development and Intellectual Property, which would develop a work programme relating to the approved recommendations and monitor, discuss and report on its implementation. This Committee would also be able to address other IP and development issues, agreed by members of the Committee itself or of the General Assembly. In spite of several internal controversies that caused a deadlock on the approval of a new budget, the 2007 General Assembly did move forward on the WIPO Development Agenda. As recommended by the PCDA, it approved the creation of the new Committee on Development and Intellectual Property, which will meet twice during the following year. The main task of the new Committee will be the implementation of the PCDA consensus proposals, which were adopted. In particular, the General Assembly instructed the immediate implementation of a list of 19 proposals, based not on their higher priority but simpler execution in terms of financial and human resources. Other WIPO Activities, Including Technical AssistanceEven if international provisions establish minimum requirements for national IP systems, sometimes limiting the room for countries to construct their IP system according to their particular needs and conditions, these provisions may provide facultative exceptions, allowing countries to opt between diverse approaches, or otherwise maintain 'flexibilities' for national policies. As discussed in Chapter 3, the TRIPS Agreement, for instance, allows WTO Members to define certain fundamental concepts in a manner they deem adequate. Article 27.3(b) of the TRIPS Agreement, moreover, obliges WTO Members to provide protection for plant varieties, but allows them to choose between providing patent or sui generis protection. The use of the flexibilities provided by certain international agreements, therefore, becomes essential to 'claw back' some of the policy space lost to minimum or harmonized standards. WIPO, as one of the main providers of technical assistance to developing countries in the design and implementation of their national IP regimes, plays a fundamental role in the extent to which these countries become aware of the existence and importance of flexibilities in international IP agreements. Between 1996 and 2000, WIPO assisted 119 developing countries and regional organizations in the preparation of 214 draft IP laws. During that period, WIPO also prepared draft provisions to amend and modernize existing laws and made comments and suggestions on 235 draft laws received from 134 developing countries and regional organizations in developing countries (Pengelly, 2005). However, its approach to technical assistance, which it also provides for the WTO, has come under considerable criticism (Box 4.3). In its proposals on the WIPO Development Agenda, the Group of Friends of Development recognized the central importance of WIPO in the provision of IP-related technical assistance and capacity building, not only by virtue of its own mandate, but also in light of its agreement with the WTO. While acknowledging that WIPO has made significant strides in providing developing countries with technical assistance, the Group of Friends of Development emphasized that more needs to be done to ensure that such assistance is useful to development objectives, particularly by ensuring the technical assistance programmes focus not only on the implementation and enforcement of obligations, but also on the use of in-built rights and flexibilities in international treaties. Civil society organizations, however, have been more critical of the type of technical assistance provided by WIPO (MSF, 2003).
ConclusionThe launch of the WIPO Development Agenda was considered a milestone in the IP and development debate. It was the first time WIPO was called upon to expressly address its role with respect to internationally agreed development goals. Its Member States voiced agreement on the need to view IPRs as a means, not an end in themselves, and to ensure the work of WIPO contributes to the use of such a means in a manner coherent with development and other public policy concerns. The links between IP and genetic resources and TK make such an approach particularly significant. IP and genetic resources and TK issues are relevant and important, and have been raised and discussed in a range of WIPO bodies. Many developing countries and civil society organizations consider, however, that more tangible measures are still required to ensure that IP rules and activities in WIPO advance relevant international objectives and principles. As discussions continue in the IGC whose mandate will once again need to be considered in 2007 the challenge for the organization and its Member States will be to agree on concrete steps towards the international recognition and protection of TK and folklore. Similarly, as consideration continues regarding the changes needed in both the role and attitude of WIPO to truly serve its goal the promotion of innovation for the public interest (Boyle, 2004) a critical undertaking will be to modify WIPO's vision, work programme and activities to adequately recognize its responsibility on issues related to the protection of biodiversity and the promotion of food security. The next two chapters discuss the international agreements on biodiversity in general and for food and agriculture in particular and the role IP plays in them. ResourcesThere is a range of resources for following up on various aspects of the issues covered by WIPO, including, on WIPO generally: Musungu and Dutfield (2003), Boyle (2004) and the WIPO website, www.wipo.int. See also:
On SCP and SPLT: Correa and Musungu (2002), GRAIN (2003) and Correa (2004a). On the IGC: Lettington and Nnadozie (2003), CIEL and South Centre (2005) and the WIPO IGC Accredited Observers' webpage, www.wipo.int/tk/en/igc/ngo/ngopapers.html. |
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