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Africa: Intellectual Property
AfricaFocus Bulletin
Nov 7, 2004 (041107)
(Reposted from sources cited below)
Editor's Note
"Humanity stands at a crossroads - a fork in our moral code and a
test of our ability to adapt and grow. Will we evaluate, learn and
profit from ...new ideas and opportunities [to share knowledge], or
will we respond to the most unimaginative pleas to suppress all of
this in favor of intellectually weak, ideologically rigid, and
sometimes brutally unfair and inefficient policies [on intellectual
property]? - Geneva Declaration on the Future of the World
Intellectual Property Organization
Despite continued U.S. refusal to allow the use of cost-effective
generic drugs in its international AIDS programs (see
http://www.africafocus.org/docs04/acc0411.php), there is momentum
on other fronts in the international campaign to give priority to
health and development needs over narrow interpretations of patent
rights. The European Commission on October 29 proposed a new
regulation to allow generic drug manufacturers to produce patented
medicines for exports. Earlier in October, the World Intellectual
Property Organization (WIPO) adopted a proposal by developing
countries to fully integrate development priorities into its
consideration of intellectual property issues.
WIPO, though much less prominent than the powerful World Trade
Organization (WTO), is the official UN agency with responsibilities
including technical assistance to countries on intellectual
property rights, including patents, copyrights, and other related
issues. In recent years experts, non-governmental organizations,
and developing countries have lobbied actively for a more proactive
role for WIPO, noting that "humanity faces a global crisis in the
governance of knowledge, technology and culture." In response the
WIPO assembly on October 4 approved a proposal for a "development
agenda" presented by Brazil, Argentina, and other developing
countries.
This AfricaFocus Bulletin presents the unofficial Geneva
Declaration and excerpts from the developing country proposal on
this issue. These documents, as well as much additional background
information and copies of the Geneva Declaration in French,
Spanish, and other languages, are available at
http://www.cptech.org/ip/wipo/genevadeclaration.html
On the topic of access to medicines in particular, the Health
Systems Resource Centre of the British Government's Department for
International Development has just released several new papers
warning of implications of new developments in intellectual
property and trade laws. In particular, a paper on "Access to
Medicines in Under-served Markets" calls spells out the new
difficulties that will arise next year for production of new
generic drugs when tighter patent rules come into effect in India
and China. See
http://www.dfidhealthrc.org/shared/know_the/publications.html for
this and other related publications.
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Geneva Declaration on the Future of the World Intellectual Property
Organization (WIPO)
Humanity faces a global crisis in the governance of knowledge,
technology and culture. The crisis is manifest in many ways.
- Without access to essential medicines, millions suffer and die;
- Morally repugnant inequality of access to education, knowledge
and technology undermines development and social cohesion;
- Anticompetitive practices in the knowledge economy impose
enormous costs on consumers and retard innovation;
- Authors, artists and inventors face mounting barriers to
follow-on innovation;
- Concentrated ownership and control of knowledge, technology,
biological resources and culture harm development, diversity and
democratic institutions;
- Technological measures designed to enforce intellectual property
rights in digital environments threaten core exceptions in
copyright laws for disabled persons, libraries, educators, authors
and consumers, and undermine privacy and freedom;
- Key mechanisms to compensate and support creative individuals and
communities are unfair to both creative persons and consumers;
- Private interests misappropriate social and public goods, and
lock up the public domain.
At the same time, there are astoundingly promising innovations in
information, medical and other essential technologies, as well as
in social movements and business models. We are witnessing highly
successful campaigns for access to drugs for AIDS, scientific
journals, genomic information and other databases, and hundreds of
innovative collaborative efforts to create public goods, including
the Internet, the World Wide Web, Wikipedia, the Creative Commons,
GNU Linux and other free and open software projects, as well as
distance education tools and medical research tools. Technologies
such as Google now provide tens of millions with powerful tools to
find information. Alternative compensation systems have been
proposed to expand access and interest in cultural works, while
providing both artists and consumers with efficient and fair
systems for compensation. There is renewed interest in compensatory
liability rules, innovation prizes, or competitive intermediators,
as models for economic incentives for science and technology that
can facilitate sequential follow-on innovation and avoid monopolist
abuses. In 2001, the World Trade Organization (WTO) declared that
member countries should "promote access to medicines for all."
Humanity stands at a crossroads - a fork in our moral code and a
test of our ability to adapt and grow. Will we evaluate, learn and
profit from the best of these new ideas and opportunities, or will
we respond to the most unimaginative pleas to suppress all of this
in favor of intellectually weak, ideologically rigid, and sometimes
brutally unfair and inefficient policies? Much will depend upon the
future direction of the World Intellectual Property Organization
(WIPO), a global body setting standards that regulate the
production, distribution and use of knowledge.
A 1967 Convention sought to encourage creative activity by
establishing WIPO to promote the protection of intellectual
property. The mission was expanded in 1974, when WIPO became part
of the United Nations, under an agreement that asked WIPO to take
"appropriate action to promote creative intellectual activity," and
facilitate the transfer of technology to developing countries, "in
order to accelerate economic, social and cultural development."
As an intergovernmental organization, however, WIPO embraced a
culture of creating and expanding monopoly privileges, often
without regard to consequences. The continuous expansion of these
privileges and their enforcement mechanisms has led to grave social
and economic costs, and has hampered and threatened other important
systems of creativity and innovation. WIPO needs to enable its
members to understand the real economic and social consequences of
excessive intellectual property protections, and the importance of
striking a balance between the public domain and competition on the
one hand, and the realm of property rights on the other. The
mantras that "more is better" or "that less is never good" are
disingenuous and dangerous -- and have greatly compromised the
standing of WIPO, especially among experts in intellectual property
policy. WIPO must change.
We do not ask that WIPO abandon efforts to promote the appropriate
protection of intellectual property, or abandon all efforts to
harmonize or improve these laws. But we insist that WIPO work from
the broader framework described in the 1974 agreement with the UN,
and take a more balanced and realistic view of the social benefits
and costs of intellectual property rights as a tool, but not the
only tool, for supporting creativity intellectual activity.
WIPO must also express a more balanced view of the relative
benefits of harmonization and diversity, and seek to impose global
conformity only when it truly benefits all of humanity. A "one size
fits all" approach that embraces the highest levels of intellectual
property protection for everyone leads to unjust and burdensome
outcomes for countries that are struggling to meet the most basic
needs of their citizens.
The WIPO General Assembly has now been asked to establish a
development agenda. The initial proposal, first put forth by the
governments of Argentina and Brazil, would profoundly refashion the
WIPO agenda toward development and new approaches to support
innovation and creativity. This is a long overdue and much needed
first step toward a new WIPO mission and work program. It is not
perfect. The WIPO Convention should formally recognize the need to
take into account the "development needs of its Member States,
particularly developing countries and least-developed countries,"
as has been proposed, but this does not go far enough. Some have
argued that the WIPO should only "promote the protection of
intellectual property," and not consider, any policies that roll
back intellectual property claims or protect and enhance the public
domain. This limiting view stifles critical thinking. Better
expressions of the mission can be found, including the requirement
in the 1974 UN/WIPO agreement that WIPO "promote creative
intellectual activity and facilitate the transfer of technology
related to industrial property." The functions of WIPO should not
only be to promote "efficient protection" and "harmonization" of
intellectual property laws, but to formally embrace the notions of
balance, appropriateness and the stimulation of both competitive
and collaborative models of creative activity within national,
regional and transnational systems of innovation.
The proposal for a development agenda has created the first real
opportunity to debate the future of WIPO. It is not only an agenda
for developing countries. It is an agenda for everyone, North and
South. It must move forward. All nations and people must join and
expand the debate on the future of WIPO.
There must be a moratorium on new treaties and harmonization of
standards that expand and strengthen monopolies and further
restrict access to knowledge. For generations WIPO has responded
primarily to the narrow concerns of powerful publishers,
pharmaceutical manufacturers, plant breeders and other commercial
interests. Recently, WIPO has become more open to civil society and
public interest groups, and this openness is welcome. But WIPO must
now address the substantive concerns of these groups, such as the
protection of consumer rights and human rights. Long-neglected
concerns of the poor, the sick, the visually impaired and others
must be given priority.
The proposed development agenda points in the right direction. By
stopping efforts to adopt new treaties on substantive patent law,
broadcasters rights and databases, WIPO will create space to
address far more urgent needs.
The proposals for the creation of standing committees and working
groups on technology transfer and development are welcome. WIPO
should also consider the creation of one or more bodies to
systematically address the control of anticompetitive practices and
the protection of consumer rights.
We support the call for a Treaty on Access to Knowledge and
Technology. The Standing Committee on Patents and the Standing
Committee on Copyright and Related Rights should solicit views from
member countries and the public on elements of such a treaty.
The WIPO technical assistance programs must be fundamentally
reformed. Developing countries must have the tools to implement the
WTO Doha Declaration on TRIPS and Public Health, and "use, to the
full" the flexibilities in the TRIPS to "promote access to
medicines for all." WIPO must help developing countries address the
limitations and exceptions in patent and copyright laws that are
essential for fairness, development and innovation. If the WIPO
Secretariat cannot understand the concerns and represent the
interests of the poor, the entire technical assistance program
should be moved to an independent body that is accountable to
developing countries.
Enormous differences in bargaining power lead to unfair outcomes
between creative individuals and communities (both modern and
traditional) and the commercial entities that sell culture and
knowledge goods. WIPO must honor and support creative individuals
and communities by investigating the nature of relevant unfair
business practices, and promote best practice models and reforms
that protect creative individuals and communities in these
situations, consistent with norms of the relevant communities.
Delegations representing the WIPO member states and the WIPO
Secretariat have been asked to choose a future. We want a change of
direction, new priorities, and better outcomes for humanity. We
cannot wait for another generation. It is time to seize the moment
and move forward.
Developing Countries' Proposal for Establishing a Development
Agenda for WIPO
Third World Network
http://www.twnside.org.sg
TWN Info Service on WTO and Trade Issues (Oct04/3)
4 October 2004
A major development of potentially great significance took place at
the General Assembly of the World Intellectual Property
Organisation (WIPO), held in Geneva on 27 September to 5 October
2004: the presentation of a proposal by several developing
countries to establish a "Development Agenda" for WIPO.
The proposal (which has the document number WO/GA/31/11, dated
August 27 2004) was originally submitted by Argentina and Brazil.
It was co-sponsored by Bolivia, Cuba, Dominican Republic, Ecuador,
Iran, Kenya, Sierra Leone, South Africa, Tanzania and Venezuela. On
4 October, Egypt announced it was also joining as a co-sponsor.
The proposal was discussed extensively by the Assembly in formal
and informal sessions on 30 September, 1 and 2 October and a
decision welcoming it was adopted by the WIPO General Assembly on
4 October.
Proposal by Argentina and Brazil for the Establishment of a
Development Agenda for the World Intellectual Property Organization
[excerpts: for full text see
http://www.cptech.org/ip/wipo/genevadeclaration.html]
Submitted to the 40th Series of Meetings of the Assemblies of the
Member States of WIPO and to the 31st Session of the WIPO General
Assembly
27 September -5 October 2004
...
II - the Development Dimension and Intellectual Property Protection
Technological innovation, science and creative activity in general
are rightly recognized as important sources of material progress
and welfare. However, despite the important scientific 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 to separate 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 technological innovation, 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 their levels
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 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
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 and Public Health at the 4th Ministerial Conference of
the WTO represented an important milestone. It recognized 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.
...
III - Integrating the Development Dimension into WIPO's Activities
As 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 be limited to the promotion of
intellectual property protection. ...
We therefore call upon WIPO General Assembly to take immediate
action in providing for the incorporation of a "Development Agenda"
in the Organization's work program.
IV - the Development Dimension and Intellectual Property
Norm-Setting: Safeguarding Public Interest Flexibilities
WIPO is currently engaged in norm-setting activities in various
technical Committees. Some of these activities would have
developing countries and LDC 's 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 of implementing TRIPS itself. ...
While access to information and knowledge sharing are regarded as
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. ...
VI - The Development Dimension and Intellectual Property
Enforcement
Intellectual 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 their own legal systems and practice, as clearly
foreseen by Article 1.1 of TRIPS, should be safeguarded. ...
VII - Promoting "Development Oriented" Technical Cooperation and
Assistance
WIPO is the main multilateral provider of technical assistance in
the field of intellectual property. By virtue of the 1995 agreement
with the WTO, it plays an important role in providing developing
countries with technical assistance to implement the TRIPS
agreement. ... must be, in particular, neutral, impartial and
demand-driven. ...
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.
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. ...
Currently, in WIPO, the term NGO is used to describe both public
interest NGOs and user 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, in
WIPO, 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 a proper balance is struck between
the producers and users of technological knowledge, in a manner
that fully services the public interest.
...
AfricaFocus Bulletin is an independent electronic publication
providing reposted commentary and analysis on African issues, with
a particular focus on U.S. and international policies. AfricaFocus
Bulletin is edited by William Minter.
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