Sisule F. Musungu – Dr. Francis Gurry’s Report to the Members States of the World Intellectual Property Organization (WIPO) at the opening of the 2009 General Assemblies can be summed up as a call to rethinking and reshaping culture, systems, governance, norms and strategy. How WIPO’s culture evolves, how the global intellectual property (IP) system is governed and reshaped for the 21^st Century, the balance in the norms that are generated by the organization and the strategy for engagement and dialogue will determine the contribution of WIPO to addressing today’s pressing global challenges; from development through to tackling climate change. In this post, I offer some reflections on where WIPO is one year into the new administration and on the DG’s thoughts on the challenges going forward.

Cultural change

Organizational culture, according to Wikipedia, can be defined as the collection of values and norms that are shared by people and groups in an organization and that control the way they interact with each other and with stakeholders outside the organization. WIPO’s culture has come under criticism before for a range of reasons. The complaints have ranged from the efficiency of service delivery in systems such as the Patent Cooperation Treaty (PCT) through to questions regarding the ethical foundations, for example, of the technical assistance programme.

The DG’s Report mainly focuses on the internal processes built around the Strategic Realignment Programme. Laudable projects on stimulating the service-oriented culture, ethics, and administrative procedures have been completed or underway. More are planned. While the overall impact of these projects will only become clearer in the future the focused attention to internal organisation, oversight and culture as well as the candidness regarding where the problems lie is something to be welcomed in any United Nations (UN) agency and other international organisations. These internal processes are critical for any cultural change in the organisation.

But true cultural change at WIPO lies in its external engagement. The DG could have offered more insights into any efforts and projects, for example: to enhance WIPO’s balanced and constructive engagement with its wide ranging and growing group of stakeholders; on propaganda free outreach and communications: enlightened external relations; and meeting the strategic goal of making WIPO a trusted place of reference on IP information and research. Considering that the DG’s new senior management team will only be in place from December 2009 he should be cut some flak for now. But these issues should be priority for the new team if we are to see a culturally different WIPO in the next year.

Rethinking IP rights in the knowledge economy

It can no longer be business as usual for the global IP system. This, as Gurry argues, is because “there are many, many policy questions and challenges that arise in relation to property rights in knowledge…” The big question is what solutions we offer to this questions and challenges and how we seek to do this. The DG’s report raise and/or point to a number of important issues in this context. A few thoughts on each.

Development and IP

The WIPO Development Agenda embodies the most comprehensive effort, so far, to integrate IP and development policy. It is true, as the DG observes, that the Development Agenda was, and is about, how people in developing countries and least-developed countries (LDCs) participate in, and enjoy the benefits of, the knowledge economy. In human rights language one could think about a key part of the Development Agenda being to get WIPO, to contribute meaningfully to realising the rights under article 15 of the International Covenant on Economic, Social and Cultural Rights (ICECSR), namely, the rights of people in developing countries and LDCs to:

• Take part in cultural life recognising the opportunities and pitfalls of today’s digital environment;
• Enjoy the benefits of scientific progress and its applications in areas such as health, food security, and climate change; and
• Benefit from the moral and material interests resulting from scientific, literary and artistic productions, that is, enabling creators to lead a dignified economic existence without compromising wide availability of technological and cultural goods and services.

Ensuring that the Committee on Development and IP (CDIP) delivers an ambitious implementation and monitoring programme will be key to success. While a reasonably good start has been made, the bulk of the work and thinking, to turn a vision into reality in the towns and villages of developing countries and LDCs remains to be done. It is a task that not only WIPO Secretariat and Member States have to contribute to but one that also requires the efforts of all other stakeholders in the Organization including civil society organisations and industry players.

IP technical assistance and capacity building

Since the publication of the report of the UK Commission on IP in 2002, which, among other things, criticised WIPO’s technical assistance and capacity building programmes, the organisation’s work in this area has come in for sharp criticism including by its Member States. During the negotiations on the establishment of the WIPO Development Agenda, the Group of Friend of Development in their most comprehensive submission (see WIPO document IIM/1/4 paragraph 59) observed that the concerns with WIPO technical assistance and capacity building activities related to “the underlying philosophy, content and process…”

In probably the first clearest public acknowledgement of problems with WIPO’s work in this area, the DG in his Report captures a number of key points which he should be held accountable to in the future. Two particular points are worth noting. These are that:

• Projects to implement the WIPO Development Agenda must make a difference and should not just be a continuation of standard technical assistance under another guise; and
• While not wishing to diminish the importance of WIPO regular capacity building programme, it is important to accept and recognise that “there is little point in having a separate Development Agenda if it is merely a repetition of our standard program”.

It is for this reason that the “major strategic review” of WIPO development program in the context of the elaboration of the medium term strategic plan for the organisation slated for the coming year will be something to carefully watch and engage with, especially for developing countries.

National IP strategies

It is clear from the Report of the DG that at the centre of the review of the capacity building programme will be the use of national IP strategies as the main vehicle for the delivery of technical assistance and capacity building. This, the DG argues, will create better linkages between the economic objectives, priorities and resources of countries and use of IP. It is difficult to dispute this argument. Indeed, an increasing number of organisations, from industry groups to some NGOs, are warming up to the idea of national IP strategies.

Philosophy, content and process will remain key for all actors who seek to provide assistance to developing countries through IP strategies. The first test, which WIPO recognises, will be developing robust and transparent methodology. Other ingredients will include ideologically-neutral content and inclusive process as well as professional accountability.

Whether it is WIPO or industry or civil society provision of technical assistance in the development of IP strategies should follow certain professional and ethical rules including that the experts or officers deployed for technical assistance work:

• Take reasonable measures to obtain sufficient, relevant and reliable information and evidence to support their opinions, conclusions and findings as well as technical and policy recommendations.
• Only give professional opinions or policy recommendations to governments and other entities or persons when they are as thoroughly informed as might be reasonably expected considering the purpose for which the opinion or recommendation is given. Where there are limitations regarding the completeness of the information on which the opinion, technical advice or recommendation is based, the necessary disclaimers/caveats must accompany the opinion or recommendation.
• Recognise their professional duty to refer. This means that they should advise governments to engage, or of the need to engage or consult other experts, specialists or organisations, whenever the interests or needs of the recipients would be best served by engaging or consulting such other experts, specialists or organisations.

Those who observe technical assistance, not just on IP but in other areas, such as trade, may be forgiven for laughing out loud after reading the above rules which are adapted from the IQsensato’s Code of Ethics for Policy Advice. That is because many who are in this industry have never even considered such rules or principles. That doesn’t mean, however, that we should give up. The reform in WIPO gives an opportunity to try and do better.

Balance in the normative agenda

The DG, in his Report, appeals to the Member States to find a balanced way forward in WIPO’s normative agenda. The appeal is made because “the normative agenda of the organisation is not progressing. There are blockages in several areas.” Two particular areas of norm-setting are highlighted by the DG, IP and genetic resources, traditional knowledge and traditional cultural expressions and copyright in the digital environment. The DG makes strong arguments for why progress is needed in these two areas. Reflecting on his discussion of the two issues raises two questions for me.

The first question relates to what is meant by balance in the normative agenda. Politically, there seems to be a suggestion, not necessarily intended, that balance will mean addressing developing countries concerns with misappropriation of traditional knowledge on the one hand and industry/developed countries concerns with copyright piracy on the other. But balance needs to go beyond these political lines. Balance should also mean a balance within any norms on traditional knowledge and cultural expressions as well as a balance in the approach to addressing the challenges that the copyright system faces in the digital world. Such an approach to the question of balance is important to ensure that the types of balances we are thinking of can address not only the political North-South concerns but also critical concern among stakeholders in, and between countries.

The second question relates to one of the most profound things the DG raises in his Report, namely, what to do when systems, such as the institution of copyright, fail or suffer severe stress. The suggestions in the report that WIPO Member States consider: global consultations and reflection on how to respond to the profound transformations we have witnessed with convergence, new forms of cultural expression and user-generated content in the digital environment; and whether the single issue committee structure in WIPO is adequate to addressing such challenges require serious attention.

If industry figures showing that we now have piracy rates of 95% for music are to be believed then what we are dealing with is probably less of “disregard for intellectual property”, as the DG characterises it, but rather unprecedented level of mismatch between a system and reality. We need to stop and think. The question we ought to ask is not whether people respect the law or not but whether the law is legitimate anymore; for if we have governments of the people, by the people and for the people, law and policy should reflect the reality of the people and not seek to manufacture such reality.

Dialogue on counterfeiting

The DG expresses his hope that WIPO, as an organisation, can move towards a dialogue on ways and means of dealing with counterfeiting. If WIPO Member States and other stakeholders take two points in the DG’s Report seriously, the chance of constructive dialogue is there. And ultimately some pragmatic and practical solutions may be found.

The first point relates to the meaning of counterfeiting. We are unlikely to have any meaningful dialogue if certain interests seek to confuse the meaning of this term to achieve what are clearly personal or corporate interests. In particular, efforts to use the term counterfeit in reference to the quality and safety of products such as pharmaceuticals is counter-productive and, in some, cases should be considered criminal. Except in very narrow cases of certain certification marks, IP titles are not a measure of the quality or safety of a product. Indeed, certain IP products, say medicines, such as Vioxx, may be withdrawn from the market because they are dangerous to human health. In such cases, there is nothing necessarily wrong with the underlying patent(s) or the trademark, which remain valid. Similarly, the approval of a product for marketing on safety and quality grounds does not mean that such product is cleared of IP infringement. Hence, IP enforcement measures should not be sold to the public as the primary tools to address quality and safety of products. Other laws and systems, which already exist, are better suited for that job. For this reason, Dr. Gurry’s clarity on the meaning of counterfeiting should be welcomed. In line with the TRIPS Agreement, he defines counterfeiting as “deliberate, large-scale imitation of brands, identity and trade dress”.

The second point relates to the North-South question. As long as the issue of counterfeiting is approached on the basis that the North creates IP and the South pirates, dialogue and practical solutions are unlikely in the near future.

PCT Road Map

The proposed Road Map for improving the functioning of the Patent Cooperation Treaty (PCT Road Map) has raised controversy in recent months with a number of reports, attributed to developing country “champions”, claiming this is substantive patent law harmonisation through the backdoor. In response, the DG in his Report points out that nothing is further from the truth. This, he argues, is because article 27(5) of the PCT makes it clear that PCT Members retain the freedom to determine their own substantive conditions for patentability.

There is clear evidence that the current system of patent examination and grant is inadequate at a number of levels. Beyond the commonly cited problems of duplication of work, efficiency and costs as well as quality, the system suffers a serious transparency deficit. We have a system where it is difficult to ascertain rights over goods and services, where patent searches in certain countries are simply impossible and where, in some countries, there is not even the pretence of examination. This is a situation that is not tenable. The question is how should this be addressed?

First, the PCT alone cannot solve the challenges we face. Any reform of the PCT must be complimented by other international and national measures that seek to improve quality and transparency. Secondly, with respect to the PCT, we need a more serious discussion that is based on a solid understanding of the system that exists, the problems that are sought to be addressed and a discussion in which practical solutions are offered. Generalised accusations and counter-accusations will be highly damaging especially for the economies and social conditions in developing countries. It can also not be that developing countries, as portrayed by certain reports, want the PCT system to remain as is. The first step is to realise that most developing countries will not establish the capacity to examine patents in the near future. In some cases, there are legitimate questions as to whether the scientific capacity deployed in examining all manner of patent applications in developing countries is being put to good use.

IP and global challenges – climate change

Since his election, Dr. Gurry has made it clear that he will lead WIPO to engage in a broader range of global issues that may impact or relate to IP. Climate change has quickly come to the top of that new agenda. And rightly so with IP and technology transfer issues gaining increasing political importance in the Copenhagen process. Commenting on WIPO Conference on IP and Public Policy Issues in July 2009 I argued that: “WIPO can play a useful coordinating role is dealing with or addressing the relationship between IP and a range of public policy issues. It would be dangerous, however, if WIPO was left alone to determine the rules that govern the relationship between those public policy issues and IP.”

It is in this context that I briefly reflect on the DG’s comments on IP and climate change.

As expected, the DG focuses on the positive role that IP can play in leveraging technology to address climate change. This positive spin, however, needs to be considered and tempered by thinking about a number of issues.

In my view, the truth about IP, technology and climate change is far more complicated. This is because of a number of reasons including the fact that:

• the evidence base for effective policy-making on how to address IP and technology issues with respect to both mitigation and adaptation technologies remains quite thin and unsophisticated;
• our socio-economic analytical tools (to interrogate the interaction between IP and technology in various sectors) remain largely rudimentary;
• there is limited appreciation of the full range of forces and concerns that are driving the debate on IP, climate change and technology;
• we remain trapped in a static view of the needs and concerns of the North versus the South in a world that has changed so much; and
• We lack the proper institutional arrangements and linkages for comprehensive analysis, confidence building and working on common solutions.

WIPO could contribute a great deal by accepting these limitations and, either alone or with others, working to help address the gaps in knowledge and evidence and to improve our analytical tools and capabilities.