Digital Rights Network

Comments in ## .... ##

Full version available from the WIPO IIM page

## If all you've got is a hammer then everything's a nail: need to move away from IP monoculture in approach to innovation and creativity, access to knowledge etc##

4. Experience demonstrates that WIPO has concentrated its efforts in the diffusion of standardized approaches to IP policies that assume, from an uncritical standpoint, that development follows suit as intellectual property rights protection is strengthened. Current worldwide debate questioning the appropriateness of such an approach has not been reflected in WIPO's work. Rather, discussions in WIPO have overlooked the importance of a systematic assessment of the implications of increased and standardized IPR protection in terms of access to and diffusion of science, technology and related knowledge and know-how, especially for LDCs and developing countries.

5. [...] It is important to promote a critical examination of the implications for developing countries of the adoption of increased IPR protection, rather than seek to approach this highly controversial issue as if it were governed by absolute truths, solely under the one dimensional perspective of the private rights holders, ignoring the broader public interest.

## IP not and end in itself ##

7. From such a perspective, as pointed out in document WO/GA/31/11, intellectual property should be regarded not as an end in itself, but as a means for promoting the public interest, innovation, and access to science, technology and the promotion of diverse national creative industries - in order to ensure material progress and welfare in the long run. ....

## purpose of WIPO ##

9. It is incumbent upon WIPO, therefore, to effectively incorporate development promotion as one of its main goals, as already foreseen by the UN-WIPO Agreement. This brings to the forefront, inter alia, the importance of: weighing the costs and benefits generated by IPR protection; safeguarding public interest flexibilities in both ongoing and future negotiations taking place in the Organization; addressing the issue of technical cooperation from a broader perspective -- in which countries are helped to frame IP legislation that responds to their specific needs; guaranteeing wider transparency and participation in the discussions; and ensuring that the IP system effectively fosters innovation and technological development. ....

## purpose of WIPO ##

15. WIPO was established by the 1967 WIPO Convention as an independent international organisation succeeding the Bureaux Internationaux reunis pour la protection de la propriete intellectuelle (BIRPI) to "promote the protection of intellectual property" and "ensure administrative cooperation among the Unions". This objective was, however, explicitly clarified by the 1974 Agreement between the United Nations and WIPO, which established WIPO as a specialized agency of the U.N. family with the responsibility for:

[T]aking appropriate action in accordance with its basic instruments, treaties and agreements administered by it, inter alia, 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, subject to the competence and responsibilities of the United Nations and its organs, .... [Source: Artile 1 of the Agreement between UN and the WIPO, WIPO pub. No. 111, (1975) WIPO, Geneva]

## If all you've got is a hammer then everything's a nail: need to move away from IP only way to get innovation and creativity ##

16. While intellectual property protection may in particular circumstances promote creativity and innovation, it is neither the only way nor necessarily the most efficient or appropriate means for doing so at all times and in all sectors of the economy. Similarly, it is highly questionable that upward harmonization of intellectual property laws, leading to more stringent standards of protection in all countries, irrespective of their levels of development, should be pursued as an end in itself. WIPO must, as a matter of course, examine and address all features of existing intellectual property rights, including the economic and social costs that IP protection may impose on developing and least developed countries, as well as on consumers of knowledge and technology in both the North and the South. **WIPO, moreover, must be open to, and actively consider, alternative non-intellectual property-type systems for fostering creativity, innovation and the transfer of technology, while recognizing the benefits and costs of each system.** [emphasis addded]

## More on alternative systems ##

21 (b) WIPO should be open to examining non-intellectual property-type and/or non-exclusionary systems for fostering creativity, innovation and the transfer of technology, for example, open collaborative models for research, open and free software development, and compensatory liability systems and the development of technology for the public good, while recognizing the benefits and costs of each system.

## reiterate: WIPO isn't just about right's holders ##

26. Some concerns and misunderstandings have been expressed, in the past, with regard to WIPO's nature as an institution, due to its funding structure. The activities of WIPO and the International Bureau are financed by income from four main sources, namely, contributions by Member States, fees paid by private sector users of WIPO's global protection systems (PCT, Madrid, Hague and Lisbon Systems), the sale of WIPO's publications and from interest earnings. In 2002, for example, approximately 86 percent of WIPO's total funding came from fees. This situation has led some actors to argue that WIPO should be more responsive to the interests of the rightholders that use the global protection systems and their associations, since the Organization appears to have become "dependent" on them for financing. This line of reasoning is not compatible with WIPO's intergovernmental nature. Additionally, it is not conducive to a development sensitive Organization that should cater to a multistakeholder constituency of all members countries.

## Creation of WERO -- oversight body for WIPO ##

28. In order to strengthen the oversight function of Members, as well as the quality and cost-effectiveness of the Organization's modus-operandi one should consider establishing an independent evaluation and research office called the WIPO Evaluation and Research Office (WERO), which would report to the General Assembly. The Head of the Office would be vetted and approved by the General Assembly and appointed for a fixed term after which time such a person may not be employed in the WIPO Secretariat. Similar conditions may also apply to the staff of WERO. The Office would have unrestricted access to all WIPO documents and the results of the its research and recommendations would be fed back into the on-going and subsequent WIPO programmes and activities, including with respect to norm-setting.

## can't leave IP policy to the lawyers ##

31. Intellectual property law and policy as well as other regulatory regimes relating to innovation and transfer of technology have implications beyond the regulation of monopoly rights over inventions, copyrights, trademarks and other related subject matter. They impact on a much wider range of issues from access to education and learning materials to the availability and affordability of essential medicines as well on the efforts to bridge the digital divide and the technological gap. When rules and standards touch upon such fundamental issues, they cannot be formulated in accordance only with the expertise and concerns of specialized IP lawyers and rightholders groups.

## Imbalance in lobbying at WIPO ##

34. While the role of the PAC and the IAC are purely advisory, the emphasis on the role of industry and the "market sector" has raised concerns among other stakeholders about the preponderant participation of industry vis-a-vis public interest groups in WIPO. It is important to ensure that these advisory bodies whose membership is not determined or vetted by Members States do not unduly influence the manner in which the Organisation determines its priorities or implements Member's decisions.

## pretty brutal statement of imbalance of current IP system. Also emphasize lack of evidence-based policy ##

37. These standards have been designed and expanded with little consideration for their actual costs and benefits to developing countries. Norm-setting at the international level has been dominated by a paradigm that regards intellectual property rights as the only and unequivocally beneficial instrument to promote creative intellectual activity. Increased scope and levels for intellectual property protection thus often become ends in themselves in international negotiations, which have failed to take into account the need to promote and enhance access to knowledge and the results of innovation ....

38. [....] Until now, norm-setting in WIPO has focused on encouraging international agreements solely designed to promote the protection of intellectual property. Attempts by the International Bureau to launch initiatives such as the WIPO Patent Agenda, as well as its active engagement in support of treaties currently under negotiations, which do not respond to development objectives or priorities of developing countries and are not concerned with their access to the socio-economic and cultural benefits of innovation and creativity, are cases in point. To rectify this situation, WIPO should pursue a more balanced and comprehensive approach to norm-setting, emphasizing the design and negotiation of rules and standards that are guided by and fully address the development objectives and concerns of developing and least developed countries and of the international community.

## evidence-based policy ##
44. [....] All norm-setting activities in WIPO should be based on available empirical evidence and on a cost-benefit analysis. Given that intellectual property protection will generate different costs in different circumstances, from implementation burdens to potential loss of public policy space - from the economic, social, cultural, and environmental perspectives -, its necessity and desirability vis-a-vis other non-intellectual property-type and/or non-exclusionary options should be thoroughly analyzed on a case-by-case basis.

## sets out the alternatives to ever more IP. Open models ##
45. Alternatives within and outside the intellectual property system that would reach similar objectives with less monopoly of knowledge should be particularly considered. For instance, the potential of open access models for the promotion of innovation and creativity should be explored as a feasible and desirable option in many contexts. Given that the granting of exclusive rights frequently entail considerable costs, particularly in terms of access to knowledge and essential goods of crucial importance to social and economic development, any initiative involving the creation of new or expanded intellectual property rights should only be adopted if proven to be superior, in social and economic terms, to solutions based on the creation of public goods. Indeed, recognizing that current international intellectual property rules have emphasized the protection of rights vis-a-vis the public domain, WIPO should now actively seek ways to safeguard and promote the public domain and the innovative and creative activities that depend on it.

## doing impact assessments (part of evidence-based policies ##
53(a) Undertaking independent, evidence-based "Development Impact Assessment" (DIA) to consider the possible implications of each norm-setting initiative for core sustainable development indicators such as innovation, access by the public to knowledge and products, job creation, poverty alleviation, equity, respect for cultural diversity, protection of biodiversity, health, and education, particularly in developing and least developed countries. Such an independent evaluation could be carried out by the proposed WIPO Evaluation and Research Office (WERO) with the effective participation and engagement of a broad range of key stakeholders. As part of the DIA process, a cost-benefit evaluation should also be requested from other relevant international organizations and bodies, including the United Nations Conference on Trade and Development (UNCTAD), the Food and Agriculture Organization (FAO), the World Bank, the World Health Organization (WHO), the South Centre, and the Commission on Human Rights.

## relation to competition policy ##

64. The intellectual property system cannot work in isolation from competition policy and other related regulatory regimes. In designing technical assistance programmes, there is a need to expand its coverage to include matters related to the use of competition law and policy to address abuses of intellectual property and practices that unduly restrain trade and the transfer and dissemination of technology.

95. Effective administration and enforcement of an intellectual property-related competition policy appear to be particularly important, in view of the interdependency of intellectual property protection and competition. Where the efficient functioning of intellectual property is impaired by restrictive practices, the market-oriented incentives decline and social costs rise. In this respect, a well-balanced design of intellectual property treaties and national laws as regards, for example, exceptions for prior users, experimental or fair use, adequate disclosure, efficient and working requirements and misuse defences, may help both to unburden competition policy and encourage private action against undue claims for protection.