In this context, and with a view to collaboratively developing a commonly agreed strategic plan for WIPO in the medium term, DAG Member States offer further detailed comments along with specific proposals for modification with regard to issues that are of concern to the Members of the Group. While the Director General’s Foreword contains elements with which DAG members are unable to agree, comments on the same have already been provided in DAG’s first submission dated 12 July 2010 and are not being repeated here, since it is now understood that the Foreword represents the personal views of the Director General and not the collective vision of Member States. DAG comments on substantive elements of the MTSP text dated 19 August 2010 are given below. The DAG hopes that its views on these and other critical issues will be taken on board, paving the way for a collectively shared vision for the MTSP.
1. Mission
The mission statement is significant because it implies an agreement between Member States and the Secretariat about the direction that WIPO should take. Hence, the mission statement should broadly reflect the shared vision of Member States on a range of issues regarding the work of WIPO, and should be in conformity with the agreed objective of WIPO under the WIPO Convention and the responsibility of WIPO as a UN Specialized Agency under the WIPO-UN Agreement.
Under the WIPO Convention, the objective of WIPO is to “promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization, and to ensure administrative cooperation among the Unions.”
Under the WIPO/UN agreement, WIPO is responsible for “taking appropriate action in accordance with its basic instrument, 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”.
The mission proposed in the MTSP adequately extends the role of WIPO to broader promotion of innovation and creativity for development, but conditions the statement, noting that the way to achieve this is through a “balanced and effective” international IP system. The introduction of “balance” in the mission is positive. However, the term “effective” relates to stronger harmonized international IP standards, as is used in many IP agreements. Including it in the MTSP 2010-2015 would give the impression that the current system is ineffective.
Therefore, the word “effective” in the mission statement should be replaced by the word “accessible”. The use of the word “accessible” would be consistent with WIPO’s general mission statement available on its website.
2. The New Strategic Framework Chart
A box should be added in the chart on page 8 to tie in all the strategic goals to DA implementation.
The heading below the chart in page 9 - “WIPO Strategic Goals with Development Agenda Linkages” - should be changed to “WIPO Strategic Goals with Development Agenda Recommendations”.
3. A separate section on the Development Agenda Implementation
There is no specific section in the MTSP on the implementation of the WIPO Development Agenda, when it is the single, most important, overarching process to take place in WIPO in the medium term 2010-2015. It is therefore anomalous that the Development Agenda only finds a home in Strategic Goal III in the MTSP. The introduction of DA recommendations under each Goal in Chart 9 is also at odds with the descriptions under each goal. No goal specifically states how the Development Agenda will be mainstreamed, which sharply contrasts with the Program and Budget document which for the past two years has specified how WIPO was attempting to mainstream the Development Agenda under each area. As the MTSP is the main strategic document for WIPO in the medium term, DAG Member States request that a separate section on the Development Agenda Implementation be added at the beginning of the MTSP to appropriately reflect that DA implementation is an overarching, agreed objective of the organization.
In the new suggested section on the Implementation of the WIPO Development Agenda, a new strategic indicator of “Strong focus on development throughout the organization” should be inserted, with the outcome indicator as “strong focus on development throughout the organization, with effective mainstreaming of the Development Agenda principles and recommendations in the work of all relevant Programs.” This would make DA implementation a necessary strategic outcome of the MTSP that refers to all WIPO strategic goals, rather than only to the attainment of strategic goal III. The text could then go on to indicate which specific DA recommendations fall under each goal, as is reflected in the Chart in page 9 of the revised MTSP.
The description of the Development Agenda in paragraph 4 and 5 in page 26, under the Strategic Goal III, should be moved to this new section.
4. Strategic Goal 1: Balanced Evolution of the International Normative Framework for Intellectual Property
There is no indication of how the Development Agenda will be mainstreamed or reflected in the WIPO norm-setting activities and discussions in the standing committees or related discussions in open forums etc. It is requested that new language on the outcome indicator be added to qualify that the agreements to be reached should be balanced and equitable so as to promote socio-economic and cultural development of all countries. Thus, the outcome indicator in page 10 should be amended to read as “Balanced and equitable agreements reached by Member States within each area of the international normative IP framework”.
The MTSP states in the first paragraph of page 11 that the subject matter of IP is “no longer bound by territorial barriers” and that, particularly in relation to the Internet, IP subject matter requires “an international approach to be effective”. This is highly misleading. IP as a regulation, continues to be territorial. Member states decide whether or not to be part of an international instrument to extend protection beyond their own borders and their own nationals. Moreover, Member states to date, have not even discussed, leave alone agreed that any new norm setting is necessary in WIPO with respect to the Internet, particularly on IPR protection. It will be up to member states to make proposals for norm-setting on any issue, and the Secretariat’s role on Strategic Goal 1 should be limited to servicing member states’ deliberations, rather than promoting a particular agenda for norm-setting that it believes member states should adopt. Hence, the phrase “is no longer...” up to “Internet”, in paragraph 1, page 11 (lines 3-6) should be deleted, in order to correctly reflect current realities.
Paragraph 2 in page 11 refers to a “lack of progress on the normative work of the organization” and the “failure of WIPO to provide the forum to giving attention to needed adjustments and changes entails a number of risks”. It fails to recognize the approval of the Development Agenda as a fundamental normative landmark in the history of WIPO. Though its recommendations have not been translated into a new treaty, it is, nonetheless, the basis for all the work to be conducted by the organization, particularly in the normative domain. Therefore, we believe that this is misleading and the push for quick norm-setting outcomes is unjustified. Norm-setting processes during the past 5 years have indeed advanced, if not concluded, with progress achieved so far on greater convergence on issues, including on limitations and exceptions for the visually impaired and on the protection of Traditional knowledge and Folklore. This paragraph should be accordingly re-phrased to reflect accurately, the present realities.
The last paragraph in page 11 refers to the need for Committee agendas to cover the full spectrum of technological developments “from the latest advances in digital technology to traditional knowledge systems”. It is suggested that the following words be added after this phrase “… with adequate consideration of development and public policy implications.”
The section on patents in the MTSP still refers to a pressing need to keep pace with development of new technologies in the life sciences, synthetic biology, nanotechnology, etc. and the need to understand actions needed at the international level to address these developments. This oversteps the discussions that member states have agreed to in WIPO in the Standing Committee on Patents (SCP). If member states wish to bring up these proposals, they may do so, but the Secretariat should not suggest future work in this area. In the absence of any inter-governmental discussion or agreement on these far reaching issues, inclusion of these references would imply an attempt to expand the scope of patentability beyond the TRIPS agreement standards, to subject matter like life forms that are exempted from TRIPS. These references should be eliminated in order to correctly reflect the current program being discussed, as agreed to, by member states in the SCP.
The section on copyrights in the MTSP also continues to extend the mandate of what Member States have currently agreed to discuss in the SCCR. The focus on the internet and copyright enforcement in the digital environment is of concern since this is an issue that has not been discussed in any inter-governmental WIPO body so far by Member States, and on which there is no inter-governmental agreement. As mentioned in the DG’s foreword, there are a variety of experiments with legislative solutions and new business models. Therefore, in the next five years, DAG Member States would urge WIPO to collate and share such experiences and best practices in order to identify potential solutions, rather than pre-judge and advocate an approach at the outset, in the MTSP. Moreover, the right venue and inter-governmental process to discuss the future of the Internet is not WIPO, but the Internet Governance Forum (IGF), which is a broader set-up of the UN system that includes not only all UN agencies and Member States, but also civil society and industry. Indeed, references in the Director General’s foreword to internet and copyright enforcement and the statement that “the time available for developing an accepted solution is not much longer than the time span of WIPO’s Medium Term Strategic Plan” are of concern to DAG Member States, given that this sort of language in the MTSP could pave the way for WIPO to promote overly simplistic “solutions” outside the multilateral fora, be it in plurilateral negotiations or through technical assistance.
DAG members would therefore strongly urge that the references to internet and copyright enforcement in the digital environment be deleted, or at the least be placed in the context of the UN WSIS implementation and IGF discussions.
The language included in the section on brands, designs and geographical indications (GIs) in the revised MTSP still gives the impression that member states agree that there is a need to work towards harmonization of standards of protection in these areas. Member States in the TRIPS agreement fought arduously to maintain flexibility in the mode of implementing their obligations on IPRs. In the case of GIs, it is important to maintain the flexibility in the approach to meeting such obligations, in particular, choosing the system for protection of GIs in order to ensure that it is aligned with national interests and also taking into account the costs of different options of systems for the administration and enforcement of GIs. Moreover, GIs is an issue under discussion in the WTO and therefore member states have maintained a freeze in these debates in WIPO. It is therefore requested that the language “constitutes a major challenge for coherence in a world in which economic behavior is increasingly global” (penultimate paragraph, page 12) be deleted.
In the section on brands and designs, the draft MTSP in page 14 also notes that the work of the SCT committee would be “supplemented by regular thematic meetings to provide an informal forum for member states and interested parties to explore topics where the multilateral normative development could be appropriate, including unfair competition… if appropriate, lead to the initiation of more formal norm developing work in specific areas” (second last bullet point). This language appears to contravene a clear DA recommendation specifying the principles for norm-setting, and is therefore of concern. The DA recommendation on norm-setting applies to all WIPO committees, and therefore there should be no specific language in the MSTP about the role of informal forums that is specific to the SCT. Therefore, DAG Member-states request deletion of this language.
With regard to the Lisbon System on Appellations of Origin (page 19), DAG Member States request amendments as shown below, to sub-point xviii:
(xviii) An IT strategy needs to be deployed in the medium term to ensure that current investments are leveraged in the creation of a fully electronic registration and notification procedure, to be used by interested Lisbon Member States.
With regard to the ‘Strategies’ section under the Madrid System (page 21), the following alternate language is proposed in place of the current text in sub-point (xi), as shown below:
(xi) Encouraging Contracting Parties to examine the benefits of simplifying the System by moving to an environment based solely on the Madrid Protocol. Supporting the three Member States which are members of the Madrid Agreement, but not the Protocol, in acceding to the Protocol.
(xi) to enhance awareness among the Member States which are members of the Madrid Agreement, but not of the Protocol, about the eventual advantages of adhesion to the latter.
5. Strategic Goal 2: Provision of Premier Global IP Services
While we take positive note of the fact that the outcome indicators do not make any specific reference to WIPO dispute resolution mechanisms in the revised MTSP, we see that the narrative on challenges and opportunities contains specific goals on the dispute resolution system. The section on WIPO Arbitration and Media Center, clause (xxiv) in page 22 still refers to expansion of its dispute resolution services to “areas of IP policy where there is likely to be a high volume of international IP transactions, such as transfer of technology agreements in relation to environmentally friendly technologies”. This, would in our view, promote an IP centric approach towards issues of equitable access to green technologies and know-how. Given the differences in substantive laws across nations, resolution of these disputes should continue to be under the national law by appropriate national adjudicating authorities.
In respect of the PCT system, the DAG acknowledges, with thanks, the positive changes made to the document by recognizing the need to enhance the stake and ownership of developing countries in the PCT system.
6. Strategic Goal 3: Facilitating the Use of IP for Development
DAG is pleased to note that the description of the goal in the revised MTSP takes into account the comments submitted earlier. However, this goal refers narrowly to the technical assistance of WIPO that is limited to increasing the use of IP by developing countries. This goal is not about reforming WIPO or its activities and programs to make it a development-oriented organization, as envisaged by the Development Agenda recommendations. In this regard, the outcome indicators are inconsistent with the strategic outcome of “greater use of IP for development”. In particular, it is out of place that the revised MTSP refers more broadly to the Development Agenda implementation, rather than focusing on WIPO technical assistance, and that it adds as an outcome indicator the “strong focus on development throughout the organization, with effective mainstreaming of the Development Agenda principles and recommendations in the work of all relevant Programs.” Paragraph 4 of page 26 is also at odds in Goal III, and should be moved to the new section we propose on “Implementation of the Development Agenda”.
The strategic outcomes should be significantly modified to include specific indicators about how goal III will be achieved i.e. how WIPO will ensure that its technical assistance is in line with the DA recommendations, including principles to ensure transparency, providing neutral advice, including flexibilities and limitations and exceptions to IPRs etc.
Other outcome indicators focus almost exclusively on technical assistance to developing, least developed and transition countries within the framework of the Development Agenda. These do not spell out WIPO strategic approach to technical assistance in light of the Development Agenda. From this perspective, the following issues need to be added in the MTSP in strategic goal III (as possible strategic outcomes):