Access to Knowledge 2008

Access to Knowledge and the WIPO Development Agenda

Teresa Hackett

The third panel of the day will explore the Access to Knowledge Movement and its relation to the WIPO Development Agenda. The panel features Dominique Foray of Ecole Polytechnique Federal de Lausanne, Teresa Hackett of eIFL.net, Richard Owens of World Intellectual Property Organization, Maximiliano Santa Cruz of the Permanent Mission of Chile in Geneva, and Uma Suthersanen of Queen Mary School of Law. The panel will be moderated by Ahmed Abdel Latif of ICTSD.

In September 2007, the WIPO General Assembly adopted a Development Agenda for the organization. Among the 45 Recommendations, there are several which address A2K issues and concerns including recommendations for WIPO to: consider the preservation of the public domain and support norm-setting processes that promote a robust public domain; initiate discussions on how to further facilitate access to knowledge for developing countries and LDCs in order to foster creativity and innovation; and provide a forum for exchange of experiences on open collaborative projects such as the Human Genome Project.

This panel will discuss the A2K aspects of the WIPO Development Agenda looking at both the antecedents of the various recommendations as well as the implementation opportunities and challenges.

The questions to be addressed will include:

• What is the role and responsibility of WIPO, as a specialized agency of the UN, in promoting A2K?
• In which ways can the Development Agenda enhance the potential of WIPO to play this role and live up to its responsibilities for A2K?
• What practical steps and processes are needed to implement the various A2K recommendations in the WIPO Development Agenda?
• Which challenges will face WIPO and its stakeholders in implementing the A2K mandate of the Development Agenda? How can these be overcome?

Ahmed Abdel Latif

Ahmed Abdel Latif works for ICTCD at the intersection between trade and sustainable development, by trying to promote a sustainable development perspective in the international trading system and achieving a balanced and development oriented IP system.

His panel covers the following questions:
• What is the role and responsibility of WIPO, as a specialized agency of the UN, in promoting A2K?
• In which ways can the Development Agenda enhance the potential of WIPO to play this role and live up to its responsibilities for A2K?
• What practical steps and processes are needed to implement the various A2K recommendations in the WIPO Development Agenda?
• Which challenges will face WIPO and its stakeholders in implementing the A2K mandate of the Development Agenda? How can these be overcome?

It is important to emphasize that the agenda had a two-fold goal that has been present since the launch of the agenda in 2004:
1) Bring and integrate development into WIPO
2) And also bring the debate about dissemination of knowledge and open collaborative models to WIPO

The panelists have been well organized to provide a background on the relationship between A2K and the Development Agenda form a wide range of perspectives.
1) Richard Owens – will cover the background of the agenda as well as some of the key recommendations made
2) Maximiliano Santa Cruz – will provide a country perspective
3) Teresa Hackett – will provide a civil society take on the Agenda
4) Uma Suthersanen – will provide an academic approach
5) Dominique Foray – will provide an academic approach

Richard Owens

Representing WIPO itself, Mr. Owen is here not only here to talk about WIPO but also to listen to how WIPO can be more responsive to civil society and groups that have not normally had as much voice in debates on IPR policy.

He will speak about the Development Agenda, specifically how it started and some of the elements of the agenda.

The process began almost four years ago by proposals from Argentina and Brazil to mainstream the development agenda in WIPO.

The Friends of Development, a group consisting of countries from both the developing and developed world as well as members of civil society, then pushed and supported the development agenda over the four years.

Last year 45 of the proposals of the Friends of Development were adopted. These have been divided into four clusters:
1) Technical Assistance and Capacity Building
2) Norm-Setting, Flexibilities, Public Policy and Public Domain
3) Technology Transfer, Information and Communication Technologies and Access to Knowledge
4) Assessment, Evaluation and Impact Studies

A new committee was created to move these 45 proposals from idea, to recommendation to implementation.

Two of the recommendations relate to The Public Domain: 16 and 20.

“16. Consider the preservation of the public domain within WIPO’s normative processes and deepen the analysis of the implications and benefits of a rich and accessible public domain.”

“20. To promote norm-setting activities related to IP that support a robust public domain in WIPO’s Member States, including the possibility of preparing guidelines which could assist interested Member States in identifying subject matters that have fallen into the public domain within their respective jurisdictions.”

Recommendation 16 was voted for immediate implementation last year while recommendation 20 was scheduled for later implementation.

Three of other recommendations related to A2K are 19, 23 and 36. These deal with things like technology transfer and collaborative projects.

“19. To initiate discussions on how, within WIPO’s mandate, to further facilitate access to knowledge and technology for developing countries and LDCs to foster creativity and innovation and to strengthen such existing activities within WIPO.”

“23. To consider how to better promote pro-competitive intellectual property licensing practices, particularly with a view to fostering creativity, innovation and the transfer and dissemination of technology to interested countries, in particular developing countries and LDCs.”

“26. To encourage Member States, especially developed countries, to urge their research and scientific institutions to enhance cooperation and exchange with research and development institutions in developing countries, especially LDCs.”

For the remaining time, Richard Owen’s spoke about the copyright sector and how it relates to A2k and WIPO agenda. There are several relevant WIPO activities that deal with A2K issues and copyright, from the creation of a WIPO Guide on the Licensing of Copyright and Related Rights (2004) to WIPO Information Seminar on Rights Management Information (9/20070 and holding WIPO Regional Meetings on IPR and Software in the 21st Century (2007 –).

Ideas for future work:
• Activities to identify problems related to identification of public domain material (e.g. orphan works, use of metadata and RMI, the role of search engines.)
• Major study to the public domain (Part I- comparative analysis of the legislative approaches to defining PD subject matter; Part II – survey of tools for identifying and accessing PD materials.)
• Promote pro-competitive IP licensing practices
• Awareness-raising activities concerning new approaches to copyright licensing (e.g. CC, OSS)
• Global meeting on emerging treds and issues in licensing of creative content
• SCCR work on limitations and expectations (2005-)

Maximiliano Santa Cruz

In his opinion there is a new WIPO – the same animal with a new skin in a good way. There is a transfer from a more political face in WIPO to a more technical phase where the issues that many are fighting have started to make an appearance in the debate room.

What are the achievements the DA has had to date?
1) The approval of the 45 proposals
a. This is a very good result
2) Creating of the committee of Development and technology
3) But the most important achievement is the change in the way many see WIPO – both within WIPO and outside of it

This is why he calls WIPO a new organization.

Most importantly a new person has been nominated to be the new head of WIPO. Almost all of the candidates for the job of director had the development agenda in mind when they were applying

There are many stakeholders is this Agenda. There has been a lot of communications with other IGOs during the Agenda creation process –which has been very important.

NGOs have also been very involved in various activities and have played a key role in keeping the Agenda on the table. But it is more the engagement with state courts that have kept the agenda alive. Implementation should be useful and balanced – but there has really been a problem with this.

We shouldn’t lose our sense of urgency – we should be acting on all the 45 proposals by the next academic year.

It is important to keep in mind that however technical the reports and improvements may be, we shouldn’t forget politics because an action in one place can cause problems in others.

Teresa Hackett

Teresa Hackett works in over fifty developing and transitional countries helping them create and keep libraries.

Why did we become involved in the DA process? Digital technologies are transforming how content is created, disseminated and used as well as changing how libraries preserve information and disseminate it. Libraries must respond to these changes and new demands from patrons. But new copyright laws increasingly challenge library work. Often librarians have to go about using tricky methods to get around IP issues.

Her organization joined with others to ensure that they were seen as stakeholders by WIPO in the creation of the Development Agenda.

Ideas for Implementing of the Recommendations:

Cluster A Technical Assistance and Capacity Building
1. WIPO draft laws publicly available for informational purposes
2. Regional bureaus to develop a policy of consultation with civil society when developing training programs in response to requests from Member States
Cluster B Norm-setting, flexibilities, public policy and public domain
3. Global meeting on the public domain + study
4. Evaluate the effectiveness of the Berne Appendix & propose alternative solutions
5. WIPO role as intermediary between international civil society organizations and their national counterparts

They believe that civil society can contribute to the positive aspects of the agenda.

WIPO could act as a middleman between civil society and the government

Challenges:

• Full implementation and interpretation of the recommendations
• WIPO, as a UN organization, should recognize its responsibilities to user and society
• WIPO and its MS, must find a constructive balance between the different interests
• Ensure the civil society has the means to continue to play a role
• Bi-lateral trade agreements

There is more that needs to be done ahead – so they will keep coming to the meetings

Uma Suthersanen

“Time for a Declaration on the “Public Domain”

Her job was to find practical means to implement recommendations 16 and 20.

Importance of the “Public Domain” as a unifying Concept. (Public Domain is a lovely word – but what does it mean? She also likes the word robust. But Public Domain has played an important role in bringing people of many backgrounds, interests and goals together. You can shape the debate between other areas of law and IP through the words Public Domain.)
• IPRs and development
• Framing the “A2K Movement”
• Nature and governance of creativity and innovation

“Inventing” Norms-the tale of the “3-Step Test”
• Sophistry: Treaty interpretation
• Teleology: Local Interpretation
• Norm-Setting: the Munich Declaration on the Three Step Test
o Guidelines
o Declarations
o Explanatory memoranda

Three-Step rule: Governs the extent to which you can add an exception into your own domestic law when implementing international IP law into your own country

But how do you interpret anything? Vienna Convention says to look at the interpretation of the law’s framers.

Teleology says to treat the law as if it is a being of its own, and the local stake holders can interpret accordingly – they take up and interpret this international norm, taking into account the societal thoughts and feelings of the day. The interpretation thus shifts according to contexts.

Guidelines on the “Public Domain”
• Avoiding the trap of defining the concept
• An international register of “public domain matter”
• Selection criteria for public domain – borrowing from the World Heritage

Why do we have to choose a definition?

Dominique Foray

Dominique Foray spoke from the perspective of an economist of innovation.

In a sense there is good news for middle-income countries in terms of access to knowledge and technologies. Through FDI a lot of technology is entering these countries. They are increasingly relying on FDI and trade to get more access to knowledge and technology transfers

Upper and Middle-income countries are adjusting quickly to IPR changes.

Things are very different for low-income countries. There is low FDI and there are less means by which people access knowledge. They are also not involved in much trade so their channels by which they are exposed to external technologies are less powerful.

One important issue: In the case of least developed countries, the number, scale and domain of technology transfer is less so there are also questions of what kind of innovations these countries should address.

A critical issue is to target the right firms to transfer technologies into the developing world.

Provides an example of Laos.

2K is important and powerful. Having a vibrant public domain though is not enough in the developing world. Connections between people are also important. What is needed are “countless numbers of specialized Innovation Systems generated at the micro-level; systems that are born and decay as new innovation problems are posed and solved.” (David & Metcalfe, KfG expert group)