EWO/GA/31/11

WIPO

ORIGINAL: English
DATE: August 27, 2004

WORLD INTELLECTUAL PROPERTY ORGANIZATIONGENEVAWIPO GENERAL ASSEMBLY
Thirty-First (15th Extraordinary) Session
Geneva, September 27 to October 5, 2004

PROPOSAL BY ARGENTINA AND BRAZIL FOR THE ESTABLISHMENT OF A
DEVELOPMENT AGENDA FOR WIPO

Document prepared by the Secretariat

1.
In a communication dated August 26, 2004, the Secretariat received a formal proposal
from Argentina and Brazil relating to the establishment of a new development agenda within
WIPO, requesting that the proposal be distributed and added to the agenda of this session ofthe WIPO General Assembly, pursuant to Rule 5(4) of the WIPO General Rules of Procedure.
2.

The said proposal is annexed to this document.
3.
The General Assembly is invited tocomment on the proposal contained in theAnnex to this document and to decide on thecourse of action to be taken.

[Annex follows]

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ANNEX

I

DEVELOPMENT, THE MOST IMPORTANT CHALLENGE FACING THE
INTERNATIONAL COMMUNITYAt the dawn of a new Millennium, development undoubtedly remains one of the mostdaunting challenges facing the international community. The importance of facing up
to this challenge has been widely acknowledged in many international fora at thehighest level. The United Nations adopted the Millennium Development Goals, which
established a firm commitment by the international community to address thesignificant problems that affect developing countries and LDCs. The Programme ofAction for the Least Developed Countries for the Decade 2001-2010, the Monterey
Consensus, the Johannesburg Declaration on Sustainable Development and the Plan ofImplementation agreed at the World Summit on Sustainable Development, theDeclaration of Principles and the Plan of Action of the first phase of the World Summit
on the Information Society, and most recently the Sao Paulo Consensus adopted at
UNCTAD XI, have all placed development at the heart of their concerns and actions.
This has also been the case in the context of the current Doha round of multilateral tradenegotiations of the World Trade Organization (the “Doha Development Agenda”),
which was launched at the WTO’s 4th Ministerial Conference, in November 2001.

IITHE DEVELOPMENT DIMENSION AND INTELLECTUAL PROPERTYPROTECTION
Technological innovation, science and creative activity in general are rightly recognized
as important sources of material progress and welfare. However, despite the importantscientific and technological advances and promises of the 20th and early 21st centuries,
in many areas a significant “knowledge gap” as well as a “digital divide” continue toseparate the wealthy nations from the poor.

In this context, the impact of intellectual property has been widely debated in past years.
Intellectual property protection is intended as an instrument to promote technologicalinnovation, as well as the transfer and dissemination of technology. Intellectual property
protection cannot be seen as an end in itself, nor can the harmonization of intellectual
property laws leading to higher protection standards in all countries, irrespective of theirlevels of development.
The role of intellectual property and its impact on development must be carefully
assessed on a case-by-case basis. IP protection is a policy instrument the operation ofwhich may, in actual practice, produce benefits as well as costs, which may vary inaccordance with a country’s level of development. Action is therefore 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 andPublic Health at the 4th Ministerial Conference of the WTO represented an importantmilestone. It recognized that the TRIPS Agreement, as an international instrument for thec:\winnt\apsdoc\nettemp\1712\ $asqwo_ga_31_e11.doc

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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 theframework of the WTO, paragraph 19 of the WTO’s Doha Ministerial Declaration, in setting
a mandate for the TRIPS Council in the context of the Doha Development Agenda, refers
explicitly to the need to take fully into account the development dimension.

III

INTEGRATING THE DEVELOPMENT DIMENSION INTO WIPO’S ACTIVITIESAs a member of the United Nations system, it is incumbent upon the World Intellectual
Property Organization (WIPO) to be fully guided by the broad development goals that the UN
has set for itself, in particular in the Millennium Development Goals. Development concerns
should be fully incorporated into all WIPO activities. WIPO’s role, therefore, is not to belimited to the promotion of intellectual property protection.
WIPO is accordingly 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 ensurethat the “development dimension” is unequivocally determined to constitute an essential
element of the Organization’s work program. We therefore call upon WIPO General
Assembly to take immediate action in providing for the incorporation of a “DevelopmentAgenda” in the Organization’s work program.

IVTHE DEVELOPMENT DIMENSION AND INTELLECTUAL PROPERTYNORM-SETTING: SAFEGUARDING PUBLIC INTEREST FLEXIBILITIESWIPO is currently engaged in norm-setting activities in various technical Committees.
Some of these activities would have developing countries and LDCs agree to IP
protection standards that largely exceed existing obligations under the WTO’s TRIPS
Agreement, while these countries are still struggling with the costly process ofimplementing TRIPS itself.

The current discussions on a draft Substantive Patent Law Treaty (SPLT) in theStanding Committee on the Law of Patents (SCP) are of particular concern. The proposed
Treaty would considerably raise patent protection standards, creating new obligations thatdeveloping 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 developingcountries.
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, theseshould be based on the draft treaty as a whole, including all of the amendments that have beentabled 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

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Articles 7 and 8 of the TRIPS Agreement, should be included in the SPLT and other treaties
under discussion in WIPO.
While access to information and knowledge sharing are regarded as essential elements
in fostering innovation and creativity in the information economy, adding new layers ofintellectual property protection to the digital environment would obstruct the free flow of
information and scuttle efforts to set up new arrangements for promoting innovation andcreativity, through initiatives such as the ‘Creative Commons’. The ongoing controversysurrounding the use of technological protection measures in the digital environment is also ofgreat 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 isimportant to bear in mind the relevance of open access models for the promotion ofinnovation and creativity. In this regard, WIPO should consider undertaking activities with aview 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 theproposed Treaty on the Protection of Broadcasting Organizations that the Standing
Committee on Copyright and Related Rights is currently discussing should be examinedtaking into consideration the interests of consumers and of the public at large.

VTHE DEVELOPMENT DIMENSION AND THE TRANSFER OF TECHNOLOGY

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 theTRIPS Agreement. Yet, many of the developing countries and LDCs that have taken up
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 technologicalcapacity, higher standards of intellectual property protection have failed to foster thetransfer of technology through foreign direct investment and licensing. In effect,
corrective measures are needed to address the inability of existing IP agreements andtreaties to promote a real transfer of technology to developing countries and LDCs.
In this regard, 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 oftechnology to developing countries, similarly to what has already been done in otherfora such as the WTO and the UNCTAD. Among these measures, we note withparticular interest the idea of establishing an international regime that would promote
access by the developing countries to the results of publicly funded research in thedeveloped countries. Such a regime could take the form of a Treaty on Access toKnowledge and Technology. It is also important that clear provisions on transfer oftechnology be included in the treaties currently under negotiation in WIPO.

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Annex, page 4
VITHE DEVELOPMENT DIMENSION AND INTELLECTUAL PROPERTYENFORCEMENTIntellectual property enforcement should also be approached in the context of broader
societal interests and development-related concerns, in accordance with Article 7 of TRIPS.
The rights of countries to implement their international obligations in accordance with theirown legal systems and practice, as clearly foreseen by Article 1.1 of TRIPS, should besafeguarded.
In setting up the Advisory Committee on Enforcement (ACE) in 2002, the WIPO
General Assembly clearly rejected a “TRIPS-plus” approach to enforcement matters, bydeliberately 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 ofenforcement exclusively from the perspective of right holders, nor have its discussions focus
narrowly on curbing the infringement of IP rights. Such discussions are important, but theACE must also give consideration to how best to ensure the enforcement of all TRIPS-related
provisions, including those that would impute obligations to right holders as well.
Particular attention should be paid to the need to ensure that enforcement procedures arefair and equitable and do not lend themselves to abusive practices by right holders that may
unduly restrain legitimate competition. In this regard, we note that Article 8 of TRIPS statesthat corrective measures may be necessary to curb practices that may adversely affect trade
and the international transfer of technology. One should also bear in mind the related
provision of Article 40 of TRIPS, which addresses anti-competitive practices in contractual
licenses. All of these provisions of the TRIPS Agreement should be adequately brought into
WIPO’s framework.

VII PROMOTING “DEVELOPMENT ORIENTED” TECHNICAL COOPERATION AND
ASSISTANCEWIPO is the main multilateral provider of technical assistance in the field of intellectualproperty. By virtue of the 1995 agreement with the WTO, it plays an important role inproviding developing countries with technical assistance to implement the TRIPSagreement. As a United Nations specialized agency, WIPO has an obligation to ensurethat 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.
Programs for technical cooperation in IP related matters should be considerably
expanded and qualitatively improved. This is important to ensure that in all countries thecosts 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WO/GA/31/11
Annex, page 5
specific needs and problems of individual societies. It also must be directed towards assistingdeveloping countries to make full use of the flexibilities in existing intellectual property
agreements, in particular to promote important public policy objectives.

VIII A MEMBER-DRIVEN ORGANIZATION OPEN TO ADDRESSING THE
CONCERNS OF ALL STAKEHOLDERS, IN PARTICULAR CIVIL SOCIETY
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, both at the national and international levels, including in all norm-settingactivity.
Currently, in WIPO, the term NGO is used to describe both public interest NGOs anduser organizations. This creates confusion and does not seem consistent with existing UN
practice, as implemented in most of the UN specialized agencies. It is thus necessary, inWIPO, to take appropriate measures to distinguish between user organizations representing
the interests of IP right holders and NGOs representing the public interest.
Subsequently, WIPO should foster the active participation of public interest
non-governmental organizations in its subsidiary bodies to ensure that in IP norm-setting aproper balance is struck between the producers and users of technological knowledge, in amanner that fully services the public interest.

IXCONCLUSION

A vision that promotes the absolute benefits of intellectual property 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 otherhand, will strengthen the credibility of the IP system and encourage its wider acceptance as animportant tool for the promotion of innovation, creativity and development.

[Appendix follows]

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APPENDIXISSUES AND MEASURES TO BE CONSIDERED

Without prejudice to further initiatives, the following proposals, inter alia, could beconsidered by the General Assembly for the implementation of the suggested “WIPO
Development Agenda”.
(1)

Adoption of a high-level declaration on intellectual property and development
The Declaration could be adopted by the General Assembly itself or by a speciallyconvened international conference on intellectual property and development. The
Declaration should address the development concerns that have been raised by WIPO
Member States and the international community at large.

(2)

Amendments to the WIPO Convention
In order to ensure that development concerns are fully brought into WIPO activities, theMember States may consider the possibility of amending the Convention Establishing
the World Intellectual Property Organization (1967). The amendment would explicitly
incorporate the development dimension into WIPO’s objectives and functions. Since
Article 4 (“Functions”) of the WIPO Convention relates its Article 3 (“Objectives”),
paragraph (i) of Article 3 of the WIPO Convention could be amended to read as
follows:“(i) to promote the protection of intellectual property throughout the world throughcooperation among States and, where appropriate, in collaboration with any otherinternational organization, fully taking into account the development needs of its
Member States, particularly developing countries and least-developed countries”.

(3)

Treaties under negotiation

Treaties under negotiation in WIPO, such as the SPLT, should include provisions on thetransfer of technology, on anticompetitive practices as well as on the safeguarding of publicinterest flexibilities. Moreover, those treaties should include specific clauses on principles
and objectives. The language provided in Articles 7 and 8 of the TRIPS Agreement is anadequate starting point, taking into account, however, that WIPO treaties do not expressly
deal with “trade-related issues”.

(4)

Technical cooperation

We urge the Program and Budget Committee, in its next sessions, to establish consistentpluriannual programs and plans for cooperation between WIPO and developing countries
aiming at strengthening national intellectual property offices, so that they may effectively
become an acting element in national development policy. Those programs should be guided,
moreover, by the principles and objectives set out in Section VIII above.

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Appendix, page 2(5)Intellectual property and transfer of technology

We propose the creation of a Standing Committee on Intellectual Property and theTransfer of Technology, for the consideration of measures to ensure an effective transfer oftechnology to developing countries and LDCs.

(6)

Joint WIPO-WTO-UNCTAD international seminar on intellectual property anddevelopment

WIPO could jointly organize an international seminar with the WTO and UNCTAD on
intellectual property and development, with the active participation of all relevant
stakeholders, including public interest NGOs, civil society and academia.

(7)

Participation of civil society

WIPO must take the appropriate measures to ensure the wide participation of civilsociety in WIPO’s activities, changing WIPO’s terminology with regard to NGOs.

(8)

Working Group on the Development Agenda
Without prejudice to the previous proposals, a Working Group on the Development
Agenda could be established to further discuss the implementation of the Development
Agenda and work programmes for the Organization on this matter, reporting to the 41stSeries of Meetings of the Assemblies of the Member States of WIPO.

[End of Annex and of document]