Sisule F. Musungu - The World Intellectual Property Organization’s (WIPO) Committee on Development and Intellectual Property (CDIP) has a mandate for monitoring, assessing and coordinating the implementation of the WIPO Development Agenda. How this mandate is discharged, will determine whether the Development Agenda leads to the transformation of how intellectual property (IP) systems are governed and managed at both the multilateral as well as at the national levels.
As WIPO Member States debate the nature and scope of the monitoring, assessment and coordination mechanisms, it is important that the focus be on establishing mechanisms that are workable and efficient. An unwieldy system may suffocate implementation, while a weak system may allow for the Development Agenda to receive only lip service in WIPO programming and activities.
For the system to do its job, there are a number of essential elements that need to be captured in whatever mechanism that is established. These elements could offer some idea on how to treat the two proposals that have been presented by the Member States, that is, the Algeria, Brazil and Pakistan proposal and the Group B proposal.
Essentials for monitoring
In plain English, monitoring denotes the act of carefully and systematically observing or tracking a process or a situation. The implication for the implementation of the Development Agenda is that there must be a way for the CDIP to carefully (look beyond the surface) and systematically (continuously and consistently) track implementation both in terms of the activities of WIPO at headquarters as well as the activities in-country.
The goal here can be achieved through regular reporting to the CDIP and the General Assembly by the WIPO Secretariat (Director General) on implementation, including specific progress reports on the thematic projects and by tracking developments in other WIPO bodies.
The other essential element here relates to reporting to the UN. This is important because an important aim of the Development Agenda was to ensure that WIPO programmes and activities are aligned to broader development goals pursued by the UN family. Since such reporting is already mandated by Article 6 of the Agreement between the UN and WIPO the only relevant question relates to form. The easiest way to deal with this would be an agreement that there would be a special chapter in the general WIPO report to the UN on the Development Agenda, including information on the results of any assessments on implementation.
Essentials for assessment
Undertaking an assessment implies a determination of the value, quality or importance of something. Consequently, in the case of the WIPO Development Agenda, the CDIP’s mandate for assessing implementation requires that the Committee determines the value, quality and/or importance of the implementation activities and programmes. In other words, proper assessment should be able to tell us objectively whether the Development Agenda is making a difference or not. The key element here is objectivity. Two issues need to be addressed to achieve objectivity (1) the nature of the institutional arrangements put in place; and (2) the expertise and experience that is brought to bear in the assessment process.
On the institutional side, other than the original idea of the Group of Friends of Development to establish an independent WIPO Evaluation and Research Office (WERO), the closest one can get to an institutional framework for objective assessments in the current WIPO structure is to use the WIPO Audit Committee. Here the WIPO General Assembly could mandate the Audit Committee to commission independent reviews at two levels. First, there should be biennium reviews which look at how far the implementation of the Program and Budget has gone in contributing to the integration of development and IP policy. At the second level, there should be a review of how far the four or five year Medium-Term Strategic Plan (MTSP) has gone in this direction. Taking into account costs and the complexity of the task, the biennium reviews could be smaller exercises with the four/five year one being the major reviews.
At the level of expertise and experience, the key lies in multidisciplinary and professionalism. The relationship between IP and development is multifaceted and requires different disciplines to come together if we are to get a comprehensive picture. But one crucial point that might be easily forgotten is that implementation is not just about the substance but also relates to how projects are managed and executed. This suggests that any assessment must include expertise and experience on change management and project management. The right teams for these exercises will therefore be those that bring in substantive legal, economic and development expertise, project evaluation expertise as well as organisational change management expertise.
Essentials for coordination
There are two levels at which coordination is important. The first level relates to coordination within the WIPO Secretariat. Already, the WIPO Director General has established the Development Agenda Coordination Division (DACD) which is so far doing a good job. Coupled with the efforts to integrate the Development Agenda into the Results-Based Management (RBM) Framework we should be able to have the right level of internal coordination. The challenge going forward will relate to keeping the momentum and ensuring that the DACD has the necessary backing to engage with all other divisions. The second level of coordination is at the Member States level. The main issue here relates to how to ensure that the Development Agenda, particularly the norm-setting principles, inform and guide the work of all WIPO bodies. This is the responsibility of the Member States and the General Assembly will have to make some clear decisions. An important argument to consider in this debate is how to ensure that WIPO does not create unwieldy structures and that the autonomy and mandate of each body is preserved. In other words how can you ensure coordination while maintaining the principle of equality of different bodies and ensuring efficiency?
The issue may appear more complicated than it actually is but there is an important semantic distinction in the language used by the General Assembly on the question of coordination that may be lost to a casual observer. The mandate of the CDIP, according to the decision of the General Assembly, is to coordinate with other WIPO bodies. It is not a mandate for the CDIP to coordinate other bodies. This is an important distinction. Its implication is that the CDIP has to work with other bodies as opposed to ordering them around.
Two things need to be done for the principle of coordinating with other bodies to be realised. First there has to be a way for the CDIP to be informed of what other Committees are doing with respect to the Development Agenda. It appears that having all Committees include in their agendas an item on the Development Agenda would help those committees discuss their contribution which could then be reported to the CDIP through the Secretariat or the Chairs of the other bodies. Second, and as a corollary, however, the CDIP also needs to inform other committees and bodies on its work. This could be done again though the Secretariat informing all other bodies of the work of CDIP or by the Chair of CDIP undertaking this task.
In sum, coordinating with other bodies requires a two-way traffic and exchange as opposed to coordinating other bodies which might only require one way reporting relationship.
Reconciling the Algeria, Brazil and Pakistan Proposals and the Group B proposals
Taking the above discussion into account, I consider that the two proposals on the table converge on a number of important issues. All are agreed about the need for regular reporting, on the need for understanding the contribution of other committees and on objective assessments.
The differences regarding the question of special sessions of CDIP, on the role of the Audit Committee and biennium reviews and reporting to the UN and ECOSOC are surmountable differences. On reporting to the UN, for example, it is something that is already mandated and all that remains is agreeing on the form of reporting on the Development Agenda specifically. A dedicated chapter in the general WIPO report should be relatively uncontroversial. From a governance perspective, it would also be difficult to suggest that the Audit Committee has no role in assessment. Equally, the need for multidisciplinarity should inform the debate on use of external IP and development experts. The expertise needed is actually broader than that.
