The WIPO Development Agenda (WDA) recommends (Recommendation 22) that “WIPO norm-setting activities should be supportive of the development goals agreed within the UN system, including those contained in the Millennium Declaration” otherwise known as the Millennium Development Goals (MDGs). The Recommendation goes on to ask the WIPO Secretariat, without prejudice to the outcome of Member States considerations, and subject to specific Member States’ instructions and the appropriateness of each case to, among other things, address a range of issues, such as flexibilities, exceptions and limitations, in the norm-setting working documents prepared by it. This recommendation links to Recommendation 12 which requires WIPO to further mainstream development considerations into its substantive and technical assistance activities and debates.

MDGs and WIPO’s Mandate

WIPO, as a United Nations (UN) Specialised agency, is obviously expected to work towards the overall goal of the UN as set out in the UN Charter and as from time to time determined by the UN General Assembly and other organs. What WIPO can do is, however, circumscribed by it Constitution and by the Agreement between WIPO and the UN. The latter sets out the terms for WIPO’s membership in the UN family but should also be seen as delimiting WIPO’s reach (space) in the UN system. This is important because for reasons of efficiency and cost-effectiveness, UN agencies should, as far as possible, not have overlapping mandates. The Agreements with specialised agencies are, among other things, meant to share out the responsibilities as between the specialised agencies and between specialised agencies and the principal organs, programmes and funds as well as the research and training institutes.

Looking at the Agreement between the UN and WIPO and the WIPO Constitution, the work of the WIPO Secretariat and the Member States can directly contribute to, or hamper, the realisation of a number of the MDGs. WIPO’s work would be most relevant to goals: One (ending poverty and hunger); two (universal access to education); four (child health); five (maternal health); six (combating HIV/AIDS); and seven (environmental sustainability). However, currently, the Gateway to the UN work on the MDGs does not list WIPO as a UN partner on MDGs.

Implementing Recommendation 22

The WIPO Development Agenda generally, and Recommendation 22, in particular, offers WIPO the opportunity and an entry point to become a UN Partner on MDGs. Consequently, whether WIPO can become a real partner on MDGs depends on how Recommendation 22 is implemented.

In WIPO document CDIP/3/3, to be discussed at the Third Session of the CDIP, which runs from 27 April – 1 May 2009, the WIPO Secretariat proposes that Recommendation 22 be implemented by:

• ensuring that norm-setting processes are member-driven in that the Secretariat would observe the rule that working documents for norm-setting are only prepared at the request of the Member States constituted either as the General Assembly or other formal body and that such documents are prepared in accordance with any specific guidelines provided by Member States;
• holding open events, including colloquia and open fora, to contribute to the better understanding of issues under consideration in norm-setting activities and by considering the possibility of holding a Global Forum on IP and Development;
• Commissioning a series of studies in areas such as the relationship between IP and competition; and
• preparing a report (to be presented to the fifth session of the CDIP, which would presumably be held in the first half of 2010) on WIPO’s past and future activities that contribute to the achievement of MDGs.

At the basic level, this looks like a sensible way to proceed. The Secretariat’s argument is also helped by the fact that the WIPO Development Agenda is now part of the strategic goals of the organisation under the current program and budget, including Recommendation 22, and by the proposed work to implement Recommendation 12. In order to build on this positive thinking two things needs to be emphasised to both the WIPO Member States and the Secretariat.

Two take Home Points

For me, there are two take home points regarding how to implement Recommendation 22.

1. Member States must accept,  and be held accountable, to their responsibilities  for initiating, negotiating and concluding treaties or establishing other norms. If Member States are unclear about what they want or do not do sufficient home work or fail to provide sensible and sufficient guidance to the Secretariat, Recommendation 22 is unlikely to be successfully implemented. Grand standing, old ideologies and empty rhetoric are some of the things that need to be shunned by the Member States.

2. The preparation of the report on WIPO’s contribution to the MDGs needs to be a priority and has to be done with the thoroughness it deserves. The drafters should be people who understand clearly the relationship between intellectual property and the range of the issues addressed by the MDGs. While, I could not readily find it while writing this post, I am aware that WIPO has previously prepared, at least, one report on its contribution to the achivement of MDGs. That report was, however, not suffiently robust. In addition to robustness the envisaged report should also, based on surveys or other methodology, specifically address the following question: What are WIPO Member States, constituted in various bodies of the organisation, doing to ensure that WIPO through its norms contributes to the achievement of the MDGs? Such a report, which addresses both the work of the Secretariat and Member States, will be a much richer and useful report than one which simply focuses on what the Secretariat has or is doing. Member States should not enjoy the right to determine norms without the necessary accountability to the world and their citizens for how those norms contribute to MDGs and other development goals.