‘No!’ to ‘TRIPS-plus’ IP standards

The Brazilian-Argentinian initiative for a ‘development agenda’ within WIPO was motivated by, among others, concerns that WIPO was foisting on developing countries intellectual property norms beyond those stipulated by the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Chakravarthi Raghavan

THE World Intellectual Property Organisation (WIPO) should pursue a ‘development agenda’ and integrate the ‘development dimension’ into its activities, and not limit itself to promotion of intellectual property protection and increasing intellectual property rights through norm-setting treaties, according to the proposal introduced by Brazil and Argentina at the WIPO General Assembly.

Towards this end, the 1967 World Intellectual Property Convention should be amended to ensure that the ‘development dimension is unequivocally determined to constitute an essential element of the work programme of WIPO’, the proposal says.

In submitting their proposal, the two Latin American giants have expressed concern over several recent initiatives at WIPO for increasing the norms on patents, copyright and related rights, and in effect asking developing countries and least developed countries (LDCs) to undertake ‘TRIPS-plus’ obligations. TRIPS-plus obligations go beyond those imposed by the World Trade Organisation (WTO)’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Trade and development experts have noted that one of the negative effects on development of the wide attention the WTO has been garnering, has been the efforts of and pressures on other international organisations to get the support of the United States and Europe by attempting to ‘outdo’ the WTO in a range of their own activities, often to the detriment of the developing countries. This undoubtedly has also contributed to the rise of the anti-globalisation movement, with its focus of attack on the WTO itself.

Debate on IPR monopolies

Moreover, the Argentina-Brazil proposal at WIPO comes at a time when there is increasing debate within the scientific community, as well as among industry, civil society groups and consumers and even legislatures and parts of governments, including in the US itself, over the monopolies enjoyed by intellectual property rights (IPRs) holders, such as on pharmaceutical products, and the consequent costs to society. The discussion has also centred on the need for new ways to reward innovation, including through ‘purchase by the state’ of such property and placing it in the public domain rather than granting private monopolies.

The ever-increasing costs of drugs and healthcare, and the role of pharmaceutical patents and monopolies, have resulted in some wide-ranging debates on this issue in the US, with a growing volume of opinion among several of the states and in Congress calling for a rethink of intellectual property (IP) and patent and other monopoly protection rights.

Several other developing countries which are WIPO members said the Argentina-Brazil proposal will command wide support among other developing countries, which in the past 2-3 years have fought back attempts to use WIPO to adopt a TRIPS-plus approach and ratchet up global intellectual property norms, both through new treaties and through the patent harmonisation process.

In an annex to their proposal, Argentina and Brazil have called for:

the adoption of a high-level declaration on intellectual property and development by the WIPO General Assembly itself or a specially convened international conference on intellectual property and development;

amending Article 3 (objectives) of the WIPO convention to specify that in promoting IP protection throughout the world through cooperation among states and other international organisations, WIPO should ‘fully take into account the development needs of its members, particularly the developing countries and the least-developed countries’;

specific provisions in all current treaties under negotiation - such as the draft Substantive Patent Law Treaty (SPLT) being discussed in the Standing Committee on the Law of Patents - on transfer of technology, anti-competitive practices, and safeguarding public-interest flexibilities.

The proposal points out that the idea that increasing IPR norms and encouraging foreign direct investment would result in transfer of technology to developing countries has not been borne out.

Among other actions, the proposal suggests that WIPO should set up a Standing Committee on Intellectual Property and Transfer of Technology to ensure effective transfer of technology to developing countries and LDCs, take appropriate measures to ensure wide participation of civil society in WIPO activities (including changing WIPO terminology with regard to NGOs), and set up a WIPO Working Group on Development Agenda to further discuss the implementation of the development agenda and the work programme of WIPO.

Challenge of development

The Argentina-Brazil paper points out that ‘at the dawn of a new millennium, development undoubtedly remains one of the most daunting challenges facing the international community, and the importance of facing up to this challenge has been widely acknowledged in many international fora at the highest level.’

The UN, in its Millennium Development Goals (MDGs), has established a firm commitment by the international community to address the significant problems affecting developing countries and the least developed among them (LDCs). Several UN-sponsored international conferences, many at summit level, have placed development at the heart of their concerns and actions. This has also been the case in the context of the current round of multilateral trade negotiations at the WTO established at the WTO’s 4^th Ministerial Conference at Doha.

As a member of the UN system, it is incumbent on WIPO to be fully guided by the UN’s broad development goals, in particular the MDGs, and fully incorporate development concerns into all WIPO activities.

In explaining the proposal, the two nations point out that technological innovation, science and creative activity in general are rightly recognised as important sources of material progress and welfare. However, despite the important scientific and technological advances and promises of the 20^th and early 21^st centuries in many areas, a significant ‘knowledge gap’, as well as a ‘digital divide’, continue to separate the wealthy nations from the poor.

In this context, the impact of IP has been widely debated in past years. ‘IP protection is intended as an instrument to promote technological innovation, as well as the transfer and dissemination of technology. IP protection cannot be seen as an end in itself, nor can the harmonisation of intellectual property laws lead to higher protection standards in all countries, irrespective of their levels of development,’ the paper points out.

The role of IP and its impact on development must be carefully assessed on a case-by-case basis. IP protection is a policy instrument the operation of which may, in actual practice, produce benefits as well as costs, which may vary in accordance with a country’s level of development. Action is needed to ensure, in all countries, that the costs do not outweigh the benefits of IP protection.

In this regard, the adoption of the Doha Declaration on the TRIPS Agreement and Public Health at the 4^th WTO Ministerial Conference is an important milestone. It recognised that the TRIPS Agreement, as an international instrument for the protection of intellectual property, should operate in a manner that is supportive of and does not run counter to the public health objectives of all countries.

The need to integrate the ‘development dimension’ into policy-making on intellectual property protection has received increased recognition at the international level. Also in the framework of the WTO, paragraph 19 of the WTO’s Doha Ministerial Declaration, in setting a mandate for the WTO TRIPS Council in the context of the Doha Development Agenda, refers explicitly to the need to take fully into account the development dimension.

As a member of the UN system, it is incumbent upon WIPO to be fully guided by the broad development goals that the UN has set for itself, in particular the MDGs. Development concerns should be fully incorporated into all WIPO activities and WIPO’s role is not to be limited to the promotion of intellectual property protection.

WIPO is thus already mandated to take into account the broader development-related commitments and resolutions of the UN system as a whole. ‘However, one could also consider the possibility of amending the WIPO Convention (1967) to ensure that the “development dimension” is unequivocally determined to constitute an essential element of WIPO’s work programme.’

From this perspective, say Argentina and Brazil, the WIPO General Assembly should take immediate action in providing for the incorporation of a ‘development agenda’ in WIPO’s work programme.

Concern over norm-setting

The proposal notes that WIPO is currently engaged in norm-setting activities in various technical committees, and some of these activities would have developing countries and LDCs agree to IP protection standards that largely exceed existing obligations under the TRIPS Agreement - even as these countries are still struggling with the costly process of implementing the TRIPS Agreement itself.

‘The current discussions on a draft Substantive Patent Law Treaty (SPLT) in the Standing Committee on the Law of Patents (SCP) are of particular concern. The proposed Treaty would considerably raise patent protection standards, creating new obligations that developing countries will hardly be able to implement. In the course of discussions, developing countries have proposed amendments to improve the draft SPLT by making it more responsive to public interest concerns and the specific development needs of developing countries.

‘A consideration of the development dimension of intellectual property must be quickly brought to bear on discussions in the SCP. If discussions on the SPLT are to proceed, these should be based on the draft treaty as a whole, including all of the amendments that have been tabled by developing countries. Moreover, Members should strive for an outcome that unequivocally acknowledges and seeks to preserve public interest flexibilities and the policy space of Member States. Provisions on “objectives and principles”, reflecting the content of Articles 7 and 8 of the TRIPS Agreement, should be included in the SPLT and other treaties under discussion in WIPO,’ the Argentina-Brazil proposal says.

While access to information and knowledge-sharing are essential elements in fostering innovation and creativity in the information economy, adding new layers of intellectual property protection to the digital environment would obstruct the free flow of information and scuttle efforts to set up new arrangements for promoting innovation and creativity, through initiatives such as the ‘Creative Commons’. The ongoing controversy surrounding the use of technological protection measures in the digital environment is also of great concern.

The provisions of any treaties in this field must be balanced and clearly take on board the interests of consumers and the public at large. It is important to safeguard the exceptions and limitations existing in the domestic laws of member states.

In order to tap into the development potential offered by the digital environment, it is important to bear in mind the relevance of open access models for the promotion of innovation and creativity. In this regard, WIPO should consider undertaking activities with a view to exploring the promise held by open collaborative projects to develop public goods, as exemplified by the Human Genome Project and Open Source Software.

Finally, the potential development implications of several of the provisions of the proposed Treaty on the Protection of Broadcasting Organisations that the Standing Committee on Copyright and Related Rights is currently discussing should be examined taking into consideration the interests of consumers and of the public at large.

The transfer of technology has been identified as an objective that intellectual property protection should be supportive of and not run counter to, as stated in Articles 7 and 8 of the TRIPS Agreement. Yet, many of the developing countries and LDCs that have taken on higher IP obligations in recent years simply lack the necessary infrastructure and institutional capacity to absorb such technology. Even in developing countries that may have a degree of absorptive technological capacity, higher standards of intellectual property protection have failed to foster the transfer of technology through foreign direct investment and licensing.

‘In effect, corrective measures are needed to address the inability of existing IP agreements and treaties to promote a real transfer of technology to developing countries and LDCs.’

A new subsidiary body within WIPO could be established to look at what measures within the IP system could be undertaken to ensure an effective transfer of technology to developing countries, similarly to what has already been done in other fora such as the WTO and the UN Conference on Trade and Development (UNCTAD).

Among these measures would be the idea of establishing an international regime that would promote access by the developing countries to the results of publicly funded research in the developed countries. Such a regime could take the form of a Treaty on Access to Knowledge and Technology. It is also important that clear provisions on transfer of technology be included in the treaties currently under negotiation in WIPO.

Intellectual property enforcement should also be approached in the context of broader societal interests and development-related concerns, in accordance with Article 7 of the TRIPS Agreement. The rights of countries to implement their international obligations in accordance with their own legal systems and practice, as clearly foreseen by Article 1.1 of the TRIPS Agreement, should be safeguarded.

In setting up the Advisory Committee on Enforcement (ACE) in 2002, the WIPO General Assembly clearly rejected a TRIPS-plus approach to enforcement matters, by deliberately deciding to exclude all norm-setting activities from the Committee’s mandate. In undertaking any future work under its mandate, the ACE should be guided by a balanced approach to intellectual property enforcement. The ACE cannot approach the issue of enforcement exclusively from the perspective of IPR holders, nor have its discussions focus narrowly on curbing the infringement of IPRs. Such discussions are important, but the ACE must also give consideration to how best to ensure the enforcement of all TRIPS-related provisions, including those that would impute obligations to rights holders as well.

Particular attention should be paid to the need to ensure that enforcement procedures are fair and equitable and do not lend themselves to abusive practices by rights holders that may unduly restrain legitimate competition. In this regard, Article 8 of the TRIPS Agreement clearly states that corrective measures may be necessary to curb practices that may adversely affect trade and the international transfer of technology. There is also the related provision of Article 40 of the TRIPS Agreement, which addresses anti-competitive practices in contractual licences.

‘All of these provisions of the TRIPS Agreement should be adequately brought into WIPO’s framework.’

Technical assistance

WIPO is the main multilateral provider of technical assistance in the field of intellectual property. By its 1995 agreement with the WTO, it plays an important role in providing developing countries with technical assistance to implement the TRIPS Agreement. As a UN specialised agency, WIPO has an obligation to ensure that its technical cooperation activities are geared towards implementing all relevant UN development objectives, which are not limited to economic development alone. These activities should also be fully consistent with the requirements of UN operational activities in this field - they must be, in particular, neutral, impartial and demand-driven.

Programmes for technical cooperation in IP-related matters should be considerably expanded and qualitatively improved. This is important to ensure that in all countries the costs of IP protection do not outweigh the benefits thereof. In this regard, national regimes set up to implement international obligations should be administratively sustainable and not overburden scarce national resources that may be more productively employed in other areas. Moreover, technical cooperation should contribute to ensuring that the social costs of IP protection are kept at a minimum.

WIPO’s legislative assistance should ensure that national laws on intellectual property are tailored to meet each country’s level of development and are fully responsive to the specific needs and problems of individual societies. It also must be directed towards assisting developing countries to make full use of the flexibilities in existing intellectual property agreements, in particular to promote important public policy objectives.

A balanced system of intellectual property protection should service the interests of all sectors of society. Given the broad public policy implications of intellectual property, it is crucial to involve a commensurately broad range of stakeholders in the discussions on intellectual property, at both the national and international levels, including in all norm-setting activity.

Currently, in WIPO, the term NGO is used to describe both public-interest NGOs and user organisations (mostly of rights holders). This creates confusion and does not seem consistent with existing UN practice as implemented in most of the UN specialised agencies. ‘It is thus necessary, in WIPO, to take appropriate measures to distinguish between user organisations representing the interests of IPR holders and NGOs representing the public interest.’

Subsequently, WIPO should foster the active participation of public-interest NGOs in its subsidiary bodies to ensure that in IP norm-setting a proper balance is struck between the producers and users of technological knowledge, in a manner that fully serves the public interest.

‘Any vision promoting the absolute benefits of IP protection without acknowledging public policy concerns undermines the very credibility of the IP system. Integrating the development dimension into the IP system and WIPO’s activities, on the other hand, will strengthen the credibility of the IP system and encourage its wider acceptance as an important tool for the promotion of innovation, creativity and development.’

The above first appeared in the South-North Development Monitor (SUNS - issue no. 5640), of which Chakravarthi Raghavan is the Chief Editor.