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Development Agenda Implementing WIPO’s Development Agenda Studies in International Governance is a research and policy analysis series from the Centre for International Governance Innovation (CIGI) and Wilfrid Laurier University Press. Titles in the series provide timely con- sideration of emerging trends and current challenges in the broad field of international governance. Representing diverse perspectives on impor- tant global issues, the series will be of interest to students and academics while serving also as a reference tool for policy-makers and experts engaged in policy discussion. Implementing WIPO’s Development Agenda JEREMY DE BEER, editor International Development Research Centre Ottawa • Cairo • Dakar • Montevideo • Nairobi • New Delhi • Singapore Wilfrid Laurier University Press acknowledges the financial support of the Government of Canada through its Book Publishing Industry Development Program for its publishing activities. Wilfrid Laurier University Press acknowledges the financial support of the Cen- tre for International Governance Innovation. The Centre for International Governance Innovation gratefully acknowledges support for its work program from the Government of Canada and the Government of Ontario. Library and Archives Canada Cataloguing in Publication Implementing the World Intellectual Property Organization’s development agenda / Jeremy de Beer, editor (Studies in international governance) Co-published by: Centre for International Governance Innovation and the International Development Research Centre. Includes bibliographical references and index. ISBN 978-1-55458-154-2 1. World Intellectual Property Organization. 2. Intellectual property (Interna- tional law). 3. Law and economic development. I. de Beer, Jeremy, 1975– II. Centre for International Governance Innovation III. Inter- national Development Research Centre IV. Series: Studies in international governance K1404.I46 2009 346.04'8 C2008-907330-4 © 2009 The Centre for International Governance Innovation (CIGI) and Wilfrid Laurier University Press International Development Research Centre P.O. Box 8500, Ottawa, ON K1G 3H9, Canada www.idrc.ca / [email protected] ISBN (e-book) 978-1-55250-454-3 Cover design by Gary Blakeley Words+Pictures. Cover photo by Juien Mouille. Text design by Catharine Bonas-Taylor. The image on the cover of this book, from www.flikr.com, was made available by the photographer, Julien Mouille, under Creative Commons ShareAlike licence. The “blue sky” imagery conveys the essence of many ideas contained in this book. The photo was taken at Marrakech, Morocco, where the TRIPs Agreement, to which the WIPO Development Agenda in part responds, was signed. Every reasonable effort has been made to acquire permission for copyright material used in this text, and to acknowledge all such indebtedness accurately. Any errors and omissions called to the publisher’s attention will be corrected in future printings. This book is printed on Ancient Forest Friendly paper (100% post-consumer recycled). Printed in Canada CONTENTS List of Acronyms / vii Foreword by Daniel J. Gervais / ix Acknowledgements / xiii 1 Defining WIPO’s Development Agenda / 1 JEREMY DE BEER 2 The WIPO Development Agenda Forum and Its Prospects for Taking into Account Different Levels of Development / 24 SARA BANNERMAN 3 A Conceptual and Methodological Framework for Impact Assessment under the WIPO Development Agenda (Cluster D) / 34 XUAN LI 4 Reforming Governance to Advance the WIPO Development Agenda / 43 CAROLYN DEERE 5 From Agenda to Implementation: Working outside the WIPO Box / 57 E. RICHARD GOLD AND JEAN-FRÉDÉRIC MORIN 6 The Role of WIPO’s Leadership in the Implementation of WIPO’s Development Agenda / 70 SISULE F. MUSUNGU 7 Building Intellectual Property Coalitions for Development / 79 PETER K. YU 8 The WIPO Development Agenda: Factoring in the “Technologically Proficient” Developing Countries / 100 SHAMNAD BASHEER AND ANNALISA PRIMI v vi Contents 9 Localizing WIPO’s Legislative Assistance: Lessons from China’s Experience with the TRIPs Agreement / 118 LIHONG LI 10 The Public–Private Dichotomy of Intellectual Property: Recommendations for the WIPO Development Agenda / 131 V.C. VIVEKANANDAN 11 Strategies to Implement WIPO’s Development Agenda: A Brazilian Perspective and Beyond / 140 PEDRO PARANAGUÁ 12 Implementing WIPO’s Development Agenda: Treaty Provisions on Minimum Exceptions and Limitations for Education / 158 ANDREW RENS Afterword by Christopher May / 170 Contributors / 176 Index / 179 LIST OF ACRONYMS A2K access to knowledge AYUSH Department of Ayurveda, Yoga and Naturopathy, Unani, Sidhha, and Homeopathy BERD Business enterprise expenditure on R & D BIRPI Bureaux internationaux réunis pour la protection de la propriété intellectuelle BRICs Brazil, Russia, India, China CC Creative Commons CDIP Committee on Development and Intellectual Property CSIR Council of Scientific and Industrial Research CTS Centre for Technology and Society DST Department of Science and Technology FGV Fundação Getulio Vargas FTA free trade agreement GDP Gross domestic product GERD Government expenditure on R & D IBRE Brazilian Institute of Economics ICANN Internet Corporation for Assigned Names and Numbers ICTSD International Centre for Trade and Sustainable Development IDCs innovative developing countries IGOs inter-governmental organizations IGP-M general price index-market IIPA International Intellectual Property Alliance IMF International Monetary Fund INPI Patent and Trademark Office IP Intellectual property IPC4D intellectual property coalitions for development IPRs intellectual property rights LDCs least developed countries NGOs non-governmental organizations OECD Organisation for Economic Co-operation and Develop- ment PCDA Provisional Committee on the Development Agenda R & D Research and development SMEs small and medium enterprises SPLT Substantive Patent Law Treaty List of Acronyms vii viii List of Acronyms TDI Tropical Disease Initiative TPDCs technologically proficient developing countries TRIPs Trade-Related Aspects of Intellectual Property Rights UDRP Uniform Domain Name Dispute Resolution Policy UN United Nations UNCTAD United Nations Conference on Trade and Development UNESCO UN Educational, Scientific, and Cultural Organization USTR US trade representative WHO World Health Organization WTO World Trade Organization WIPO World Intellectual Property Organization Foreword Why did the World Intellectual Property Organization (WIPO) start work on a Development Agenda? There are many answers to this question. A cynic might see it as paying lip service to the growing number of discon- tents of the globalization of “Western” intellectual property rules, in par- ticular via the Agreement on Trade-Related Aspects of Intellectual Property (TRIPs), a process that would then allow progress on negotiations toward higher intellectual property protection, whether on geographical indica- tions, audiovisual performers, broadcasters’ rights, or non-original data- bases. Yet the empirical evidence shows that, since the conclusion of TRIPs, in April 1994—apart from the two WIPO “Internet treaties” on copyright concluded in December 1996 (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) and mostly administra- tive and procedural agreements such as the Trademark Law Treaty (Octo- ber 1994) and the Singapore Treaty on the Law of Trademarks (March 2006)—it has been difficult, if not impossible, to raise the multilateral level of intellectual property protection. In the past twelve years, the only new norms adopted in either WIPO or the World Trade Organization (WTO) were reinterpreted exceptions on patent compulsory licensing for certain pharmaceutical products, culminating with the adoption of Arti- cle 31bis of the TRIPs Agreement (not in force as of January 2009). This cynical view, while it may have held some sway, does not (or does no longer) reflect the real purpose of the Development Agenda. To find its purpose, one must look at the initial proposal in August 2004 by Argentina, joined by Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela. That proposal insisted on (1) the welfare costs of increasing intellectual property protection, (2) the difficulty for many developing and least-developed nations to benefit from higher protection levels, and (3) the different situation of many of those countries, especially when their economy, their industry, and culture were compared to those of the TRIPs demanders (the EC, Japan and the United States, with support mostly from Australia and Switzerland). Some of the issues identified in Argentina’s text were well argued, others more intuitive. Yet, unmistakably, the agenda ix x Foreword was an effort to illuminate the costs and challenges of implementing higher intellectual property protection as well as the distinctions among nations that must be made in that process. Cookie-cutter norm implants and paper compliance with TRIPs would not do. As I have argued elsewhere,1 we are now in the third phase of the TRIPs Agreement. The first was an addition phase (more IP is better), where compliance with TRIPs took the form of rapid legislative deploy- ment. Model laws were adopted in many countries. A threefold belief informed the first phase: first, it was essential to protect the property of intellectual property holders in both rich and poorer countries; second, by generating additional profits, it would in turn lead to more research and development; third, it was
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