Manifesto for Transparency, Participation, Balance and Access
Open Letter to the United Nation's (U.N.) World Intellectual Property Organization (WIPO)
Dr. Kamil Idris
World Intellectual Property Organization – WIPO
Chemin des Colombettes 34
1211 Geneva Switzerland
We constructivelly and respectfully call on the World Intellectual Property Organization (WIPO) to reform itself in the following ways:
A Call for Reform
We demand TRANSPARENCY within WIPO and strongly reject any kind of disproportionate representation.
Yet, we call for an immediate PARTICIPATION of civil society and consumer-interest non-governmental organizations (NGOs) within WIPO's activities. Specifically, but not limited to accepting applications from NGOs to serve as ad hoc observers at the upcoming Inter-sessional Intergovernmental Metting next 11-13 April 2005, and for the Permanent Committee on Cooperation for Development Related to Intellectual Property, next 14-15 April 2005, in order to provide a BALANCED discussion on the Development Agenda and on the IP system in general, observing an equilibrium between IP right holders and consumers.
Furthermore, we urge that WIPO, as a United Nations (U.N.) specialised agency responsible 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, plays its role in making ACCESS to knowledge feasible for humanity, bearing in mind different needs (including, but not limited to, those of the visual and audio impaired) and stages of development.
Suporting Facts, Rules and Principles
WIPO's Development Agenda
There is an evident absence of balance between rights-holder representatives, and public and civil society interests.
In this context, a Development Agenda for the U.N.'s WIPO was proposed in September-October 2004 in WIPO's General Assembly, having as its co-sponsors 14 (fourteen) Member states (*1) (as of 04 October 2004).
The Development Agenda's main observations and issues, as shown in the Annex, have sparked widespread manifestations of support from consumer advocate groups and organizations devoted to civil society's interests.
The Development Agenda was welcomed by WIPO's 2004 General Assembly, to be examined on Inter-sessional Intergovernmental Meetings, on which a report will be prepared by 30 July 2005 for the consideration of the September 2005 WIPO's General Assembly.
WIPO's Role as a U.N. Specialised Agency
The U.N. shall promote conditions of economic and social progress, of development and solutions of international economic, social, health, and related problems; and international cultural and educational cooperation (Charter of the U.N., art. 55).
The U.N. recognises WIPO as one of its specialized agencies (Agreement between the United Nations and the World Intellectual Property Organization, art. 1).
WIPO is responsible 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 (Agreement between the United Nations and the World Intellectual Property Organization, art. 1).
WIPO is subject to the competence and responsibilities of the U.N. and its organs (Agreement between the United Nations and the World Intellectual Property Organization, art. 1).
WIPO's Meetings for Discussion of IP and Development-Related Matters
WIPO's annual General Assembly has to approve any request for permanent observer status.
NGOs and IGOs may participate as ad hoc observers on WIPO's meetings, as has been the case for many to date.
The recent WIPO policy of not accepting NGOs on an ad hoc basis to observe the proceedings of the Inter-sessional Intergovernmental Meeting, and on the Permanent Committee on Cooperation for Development Related to Intellectual Property, to be held next 11-13, and 14-15, April 2005 is manifestly unfair and unjustifiable. This decision shuts out all NGOs and IGOs that have not been previously granted permanent observer status.
Given that the announcement of the Inter-sessional Intergovernmental Meeting came AFTER the last plenary session, this decision means that it is impossible for any organization whose interest lies solely with the Development Agenda to participate in this key inaugural meeting. It is procedurally not possible that an NGO that has an interest in the Development Agenda could have received permanent observer status in time to attend the meeting. This is a blatant "cooking" of the WIPO process that can have only one effect: limiting the participation of the very same civil society NGOs whose proposals spurred the creation of the Development Agenda in the first place.
This conflicts with item 7 of the Development Agenda Annex, which specifies that WIPO must take appropriate measures to ensure the wide participation of civil society in WIPO's archives.
These meetings are intended to examine the proposals contained in the mentioned Development Agenda, and will benefit greatly from the participation of civil society NGOs.
Recent WIPO Meeting on the Harmonisation of Patent Laws
Moreover, WIPO held a two-day informal meeting in Casablanca, Marocco, on 15-16 February 2005, to discuss the harmonisation of patent law throughout the world, inviting only Brazil but no other country from the group of countries that co-sponsored the Development Agenda.
At this meeting, India was invited to serve as chair. India is one of Brazil's traditional allies on IP issues, and putting India in the chairman's seat effectively neutralized it, as the chair is not permitted to "interfere" in discussions. This had the effect of isolating Brazil, and making its position seem obstructionist to outside observers.
This was compounded by the nature of the other invitees to this meeting. The rest of the attendees were drawn from national patent offices, rightsholder industry organizations, and other countries that have been passive on the WIPO debates on the Development Agenda, or that are already committed to "TRIPS-plus" patent regimes as part of their bilateral or regional trade agreements. This further unbalanced the debate, and further isolated Brazil, the sole invited proponent of less restrictive patent regimes.
Joint International Seminar on IP and Development with the WTO and UNCTAD
Twelve days ago (*2), the notice of the 02-03 May 2005 open International Seminar on IP and Development, vanished from the WIPO website. This meeting is being held jointly with the WTO, WHO, UNIDO and UNCTAD, as per one of the proposals by the Development Agenda. The abrupt disappearance of this notice speaks poorly for WIPO's transparency and commitment to broad paticipation. The WIPO General Assembly resolution of October 4, 2004 expressly provided that this seminar would be open to the particpation of all stakeholders, including NGOs, civil society, and academics.
(*1) Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela.
(*2) Since 25 February 2005 until now, 09 March 2005.
Development Agenda's main observations and issues
i) development remains a challenge, and a significant “knowledge gap” as well as a “digital divide” continue to separate the wealthy nations from the poor;
ii) the protection of intellectual property rights (IPRs) is not an end in and of itself; rather IPRs are tactical instruments used to bridge the knowledge gap and the digital divide;
iii) equally, harmonisation efforts on IPRs must be subservient to the different development needs in Member states; these nations being able to afford the flexibility they need to serve their national ends;
iv) the protection of IPRs shall never come at the expense of the legitimate interests of the public, and the cost of IP regimes shall always be weighed against the public benefit;
v) the WTO's Doha Declaration on the TRIPs Agreement and Public Health is an important milestone, as it recognises TRIPs as an international instrument for supporting public health objectives in Member states, not as an instrument for merely expanding IPRs;
vi) as a member of the U.N., WIPO must comply with and be guided by the broad development goals of the U.N.;
vii) despite WIPO already being mandated to take into account the U.N. system, the WIPO Convention (1967) shall be amended to ensure that the “development dimension” is inequivocally taken into account;
viii) WIPO treaties are generally extending existing obligations under the WTO's TRIPs Agreement, which unduly increases the burden put on developing and least developed countries, thus WIPO instruments should not expand upon TRIPs obligations;
ix) the WTO's TRIPs Agreement includes two articles – 7 and 8 – that set out objectives and principles for international instruments on knowledge goods. They call on these instruments to promote technological innovation, transfer and dissemination of technology, to the mutual advantage of producers and users so as to conduct to social and economic welfare, and to the balance of rights and obligations; adoption of measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to socio-economic and technological development, and to prevent the abuse of IP rights by right holders or the resort of practices which unreasonably restrain trade or adversely affect the international transfer of technology. Language drawn from these clauses should appear in all future WIPO instruments;
x) higher standards of IP protection have failed to foster the transfer of technology through foreign direct investment and licensing;
xi) besides including clear provisions on transfer of technology in treaties under negotiation in WIPO, a new subsidiary body within WIPO (Standing Committee on IP and the Transfer of Technology) shall be established in order to ensure an effective transfer of technology to developing countries, including the creation of an international regime that would promote access by the developing countries to the results of publicly funded research in the developed countries;
xii) creation of a Treaty on Access to Knowledge and Technology;
xiii) accordingly, it is important to bear in mind the relevance of open access models and knowledge sharing for the promotion of innovation and creativity, like free and open source software, as well as to safeguard the exceptions and limitations existing in domestic laws;
xiv) regarding enforcement, there must be a concern not only to take into account right holders, but its obligations as well, in a way that right holders take fair and equitable procedures, not restraining legitimate competition or abusing their rights (articles 8 and 40 of the TRIPs Agreement should be brought into WIPO's framework);
xv) WIPO, as a U.N. specialised agency, shall considerably expand programmes for technical cooperation in IP related matters and qualitatively improve them, as well; bearing in mind the requirements of U.N. operational activities: neutral, impartial and demand-driven;
xvi) all sectors of society should be served, including its participation in all norm-setting activity;
xvii) WIPO, besides being responsible for fostering the active participation of public interest non-governmental organisations, shall take appropriate measures to distinguish between user organisations representing the interests of IP right holders, and NGOs representing the public interest, in a way to prevent confusion and to make things more transparent;
xviii) WIPO shall jointly organise an international seminar with the WTO and UNCTAD on IP and development, with the active and unlimited participation of all relevant stakeholders, including public interest NGOs, civil society and academia;
xix) WIPO could stablish a Working Group on the Development Agenda to further discuss the implementation of the Development Agenda and work programmes for WIPO, and
xx) the very credibility of the IP system is undermined if a vision that promotes the absolute benefits of IP protection without acknowledging public policy concerns is taken, thus the development dimension shall be brought into the IP system and WIPO's activities.
Pedro de Paranaguá Moniz, Graduate Student of Law at Queen Mary's College, UK
Cory Doctorow, Electronic Frontier Foundation coordinator in Europe
Pedro A. D. Rezende, Professor of Computer Science at the University of Brasilia, Brazil
List of on-line petitioners who later signed this letter