Intellectual property and development at WHO and WIPO.

I. INTRODUCTION Recent activity at major intergovernmental organizations reflects a renewed emphasis on making the international intellectual property system work to foster global health in developing countries. The World Intellectual Property Organization1 ("WIPO") recently approved a historic "Development Agenda" - a wide-ranging set of reforms that reorients WIPO towards development and reconfigures how the organization makes policy, provides technical assistance, and is administered.2 Such an initiative may seem natural for the only inter-governmental organization (IGO) that is focused primarily on intellectual property, but such reforms are not restricted to WIPO. The World Health Organization3 ("WHO") has launched its own development agenda of sorts - an Intergovernmental Working Group on Public Health, Innovation and Intellectual Property ("IGWG") that is tasked with preparing "a global strategy and plan of action" aimed at "securing an enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportionately affect developing countries, proposing clear objectives and priorities for research and development, and estimating funding needs in this area."4 Several other IGOs have implemented programs designed to help developing countries build capacity to meet their intellectual property obligations in a way that fosters public health and access to medicines in those countries.5 In Part II of this Article, I describe these initiatives with particular emphasis on the proposals that have been approved or (in the case of the WHO working group) upon which Member states have reached consensus. In Part III, I compare the initiatives and examine how they might be expected to facilitate collaboration between the two IGOs. In Part IV, I pose some questions prompted by the diversity and ambition of the proposals that make up the initiatives. For example, given the institutional missions and commonly understood core competencies of the IGOs that have implemented these initiatives, how can they be expected interact, overlap, and/or conflict, and how might they be modified so that they build on each other? Can these initiatives be expected to improve access to medicines and needs-driven innovation in developing countries, particularly given the dire need in many developing countries for technical assistance with respect to intellectual property policy? II. THE INITIATIVES A. THE WIPO DEVELOPMENT AGENDA The WIPO Development Agenda is the culmination of a three year process that began with an eight-page proposal submitted in August, 2004 by the delegations of Brazil and Argentina to the WIPO General Assembly.6 That proposal noted "the need to integrate the 'development dimension' into policy making on intellectual property protection"7 and called for, among other things: the establishment of a new subsidiary body within WIPO to examine technology transfer; a new treaty to promote access to the results of publicly funded research in developed countries; fair enforcement of IP rights; and more development-oriented technical cooperation and assistance.8 Just over three years later, the WIPO General Assembly voted to adopt forty-five recommendations made by the Provisional Committee on Proposals Related to a WIPO Development Agenda ("PCDA") and to establish a Committee on Development and Intellectual Property to implement the recommendations.9 The PCDA's recommendations were taken from many proposals submitted by various Members over the course of four PCDA meetings.10 The recommendations are organized into five clusters, and certain proposals are to be implemented immediately." Cluster A, "Technical Assistance And Capacity Building," contains 14 proposals calling for technical assistance that is "development-oriented, demand-driven and transparent," to quote from the first proposal.12 Among other things, the proposals call for increased technical assistance, more transparency in technical assistance, assistance dealing with IP-related anticompetitive practices, information sharing, capacity-building, development of an intellectual property infrastructure, and provision of advice on flexibilities contained in the TRIPS Agreement. …