Tuesday, October 23, 2007

Balanced and handy intellectual property system is a dare

The General Assembly of the World Intellectual Property Organisation (WIPO) is meeting from September 25 to discuss the Development Agenda, a proposal to put development at the heart of the work of the UN agency.

WIPO watchers see it is an opportunity for the agency to move beyond the narrow view that any and all IP protection is beneficial and use IP to spur development and foster innovation. Articles 7 and 8 of the TRIPS Agreement seek to ensure the transfer of technology to developing countries, but a significant knowledge gap and digital divide continue to separate the wealthy nations from the poor.

Kamal Idris, Director-General, Wipo, shared his thoughts on various topics in an e-mail interview with Business Line on the eve of the meeting. Idris said the huge challenge before the IP community today was a balanced and accessible IP system.

Excerpts from the interview:

WIPO members recently reached an agreement on the Development Agenda. Do you think it will transform the way WIPO works? Do you have any plan to align with the UN's Millennium Development Goals?

Discussions in the context of the WIPO Development Agenda are part of a number of activities that seek to enhance the development dimension in WIPO's work. Ever since I took over the leadership of the organisation in 1997, I have sought to launch new initiatives and to enhance existing activities to ensure that all of WIPO's member states are in a position to use the intellectual property system as a tool for development.

The impact of this fundamental shift in approach wherein intellectual property is perceived as a strategic means of promoting development rather than an end in itself has already been felt by a number of developing countries. Nations like India, China, Brazil, Republic of Korea, Singapore, to name a few, are successfully exploiting the intellectual property system and, as a consequence, are becoming more competitive in the global marketplace.

The way forward and the true impact of the Development Agenda process and other initiatives depend upon the political will of WIPO member states and their ability to establish common ground on key issues. The actionable outcome of these discussions will build on a number of initiatives spearheaded by the Organisation in recent years.

These include:

An expansion of the share of WIPO's budget for cooperation for development activities; strengthening of WIPO's activities to promote strategic use of IP for development; assisting developing countries and LDCs in meeting TRIPS-related obligations and in using the flexibilities available under that agreement; focusing on the delivery and development of practical mechanisms for enhanced access to the IP system; broadening the participation of developing countries in the formulation of global IP policy; expanding opportunities for countries to use their IP assets in e-commerce, thereby helping to narrow the digital divide; and promoting the funds in trust programme to secure extra budgetary funding for various development projects.

Earlier this year in June, I welcomed a major breakthrough by member states in their discussions on a development agenda for WIPO. In a great demonstration of foresight and commitment, negotiators made an important contribution to international efforts to promote the development of a balanced intellectual property system that is responsive to the needs and interests of all countries - developed and developing alike.

With the active support of the WIPO secretariat, member states have been able to make significant progress in plotting the future development of the intellectual property system.

These key discussions will continue in the context of the proposed Committee on Development and Intellectual Property, which is to be composed of member states and which will be open to the participation of all accredited intergovernmental and non-governmental organisations. It is expected that the WIPO General Assembly, which meets at the end of September, will endorse the establishment of this new Committee, which is expected to meet for the first time in early 2008.

The Millennium Development Goals (MDGs) provide a clear direction and outline specific targets for countries. WIPO is committed to supporting national efforts to use the IP system as a tool for development and thereby help to ensure that the IP system makes a positive contribution towards fulfilment of the MDGs. It is my hope, that ultimately, a more development-oriented approach to IP will enable developing countries to compete on a more equal footing in the global marketplace.

What is the role of WIPO in spreading patent literacy or awareness?

Greater awareness of IP among all sectors of society - policy-makers, government officials, the business community and the general public - about the relevance and role of IP in promoting economic, social and cultural development is of prime importance. A collective effort to demystify IP and to raise awareness about its potential is making the system more accessible to all.

Through various awareness-raising initiatives, we are working to promote a broader understanding of the fundamentals of IP, its potential, the importance of its protection, how the system functions and how to use it, as well as present and future challenges. Such understanding is achieved through the delivery of broad-based education and public awareness campaigns.

A solid grasp of the workings of different aspects of the IP system is a prerequisite in developing IP literacy and is vital for countries wishing to make full use of the IP system as a tool for economic growth. For example, patent literacy is a "must" if full advantage is to be taken of the mine of technical information that is available in patent documents.

Such information may be used to stimulate new inventions and to obtain a strategic business advantage by observing emerging trends both in technology and markets; developing data on competitors by, for example, monitoring their research activities; identifying key players in specific sectors; and searching for potential business partnerships and identifying licensing opportunities.

Patent information facilitates techniques such as patent mapping, which can provide a snapshot of the patent portfolio of major organisations in a given industry. It allows an analysis of competitive strengths and weaknesses of established and emerging firms; it allows identification of key technologies in a given field; indicates patenting trends across organisations and sub-technologies; and provides a countrywide overview of the distribution of patenting activity.

While WIPO has achieved a great deal in this area, much still needs to be done on a global level to raise awareness of the huge potential offered by patent information.

When these awareness raising initiatives go hand in hand with capacity building measures - strengthened IP legal and technical infrastructures, human resource development, and effective enforcement capabilities - it is possible to create a fertile environment in which to win broad acceptance of the value of IP for development.

How do intellectual property rights promote economic growth and trade, and reduce poverty?

The ability to generate ideas, innovate and create is inherent in each one of us. These are resources that every country possesses and it is the IP system, which gives them value, allowing them to be transformed into viable, tradable assets. Through astute use of the IP system to harness their creative resources, the economic fortunes of countries no longer depend on physical factors such as natural resource endowments and geographical location.

Indeed, in the era of knowledge-based economies, knowledge, information and ideas are the prime economic drivers and through use of the IP system it is possible to convert these ubiquitous intangible assets into concrete economic gain. Strategic use of the IP system, thus offers great promise in enabling developing countries to participate in the global economy on a more even footing than in the past.

Developing countries are increasingly finding that a balanced domestic IP system, which stimulates domestic innovation, allows them to obtain value from their creative resources. It will enable more opportunities for joint ventures, collaborative R&D, mergers and acquisitions, and franchising.

An effective and balanced domestic IP system also serves as a powerful magnet in attracting foreign direct investment with all its implications for technology transfer and human resource training.

The availability of an effective national IP system that delivers IP titles (patents, trademarks, designs, copyright and related rights) in an efficient, timely and cost-effective manner enables a country's inventors and creators to draw value from the fruits of their labour. Awareness of the advantages to be drawn from the use of each of these tools of the IP system, however, is the key to unlocking their economic potential.

For example, trademarks play a key role in wealth creation. Trademarks are a means by which a company is able to build its reputation in the marketplace and thereby increase unit sales, cement customer loyalty, assist in responding to competitive pressure, expand and maintain market share, and differentiate its products, making them extremely valuable assets.

Trademarks also help in introducing new product lines. They create opportunities for additional revenue streams by providing the foundation for franchise and licensing agreements.

The use of trademarks offers companies operating in developing countries great potential to build their commercial strength both nationally and internationally. Indeed, the exploitation of national identity and branding to attract investment and promote economic development has had noticeable success, particularly in niche and specialty marketing. In this respect, geographical indications are also a powerful tool with which to add value to prestige products from specific areas.

When creatively and strategically presented to the discerning consumer, both trademarks and geographical indications can bring a considerable competitive advantage. Consider, for example, Caf‚ de Colombia (Colombia), Tequila (Mexico), and Mysore Silk (India).

Such tools, by securing the legal differentiation of products, thus, help increase the value of local products thereby boosting the local economy (including job creation), and improve the economic situation of small producers and SMEs and may further serve to promote local traditions, crafts and culture.

Similarly, the IP system may also be used both to preserve and draw value from a country's traditional knowledge of which there is an abundant supply in the developing world. Strategic use of the IP system to add value to traditional knowledge and/or to prevent its misappropriation presents an opportunity for indigenous and local communities to promote their own development objectives. The international IP community is currently exploring ways to ensure recognition and reward for holders and custodians of traditional knowledge used in a commercial setting.

Developing countries that recognise the opportunities afforded by effective IP protection and which are fully integrated into the international IP system are also becoming increasingly strong competitors in the information technology sector - a sector in which the potential value is harnessed through the IP system. Many are realising that this dynamic sector offers fertile ground for innovation and economic benefit - as with minimal risk and investment the potential return is substantial.

How far are we from international patents? Closest we now have is the Patent Cooperation Treaty (PCT). Majority of the businesses think that PCT filing is a procedure for the grant of an international patent, though it is only a simplified mechanism to file the patent application in various countries. Does WIPO envisage any such mechanism for an international patent or to integrate the PCT filing for an international patent? What are constraints of WIPO from offering single patents? Companies can save time and money if there is a single patent application and patent granting authority.

The decision on whether or not to grant a patent rests with national or regional authorities responsible for this activity. Indeed, there is no such thing as a global patent. The PCT is a filing mechanism that simplifies the process of obtaining patent protection in multiple countries. Any change to international rules governing patents rests with WIPO member states. WIPO and its member states do not currently have plans to introduce a world patent.

PCT is now major revenue earner for WIPO. Are you satisfied with the working PCT?

I am very pleased with PCT operations, which began in 1978, and I take this opportunity to pay tribute to the hard-working staff of the system. The growth rate in the filing of PCT applications has been especially significant during the last decade.

It took 18 years from the beginning of PCT operations in 1978 to reach a total of 250,000 applications, but only four years to double that figure (500,000), and another four to double it again (1,000,000). Last year, a record 147,500 applications were filed under the PCT. Continued demand for use of PCT services, is a strong indication of value and utility of this service to the user community.

Moreover, consistent growth in the use of the international patent system is testimony to the continued importance of innovation, which has fuelled human progress for centuries. Indeed, some of the world's foremost innovation-based companies have recognised the strategic value of the PCT in their business planning. Innovation is critical in generating new products, which improve the quality of our lives, and in boosting the balance sheets of innovation-based companies and the health of national economies.

WIPO is committed to improving the services and productivity of the PCT system, and has made significant progress in this respect through the introduction of information technology (IT) systems. For example, the number of applications filed electronically increased by over 100 per cent in two years and filing on electronic media now exceeds paper filings.

IT has also been successfully deployed in the movement of applications and associated data between WIPO and the various national and regional offices within the system. In addition, WIPO has successfully managed the deployment of full electronic processing of applications, which has resulted in major productivity gains in the processing of PCT applications.

IT deployment has also assisted in making the world's technology (as outlined in patent applications) available online for free-of-charge consultation. Through WIPO website PatentScope it is now possible to consult over 1.3 million international applications which represent the most important technological advances of the past twenty years, in fully searchable form for free consultation by all.

The WIPO PCT receiving office has also experienced significant growth in its activities, recording significant increases in the number of international applications filed directly with them. The PCT receiving office provides applicants with an option to file their international applications directly with WIPO, rather than through the intermediary of a national or regional office.

WIPO is able to generate over 91 per cent of its income thanks to the services it provides to the IP user community to facilitate international IP protection for patents, trademarks, designs, etc. The PCT, which currently has a membership of 137 countries, is the largest of these services.

What is the progress of efforts to bring about substantive patent law harmonisation?

In recent years, discussions at WIPO's Standing Committee on the Law of Patents (SCP) have revealed divergences in the way in which the industrialised countries, on the one hand, and many of the developing countries, on the other, are viewing the issue. For the industrialised countries, harmonisation is important as a means of improving quality and contributing to greater work sharing amongst the various patent offices.

Many developing countries are more interested in seeing other policy issues, such as the impact of the patent system on other areas of public policy, discussed. They wish accordingly to broaden the issues under discussion. Considering these divergences, member states in 2006 requested the Chair of the WIPO General Assembly to hold consultations with member states on how to shape the future work program of the SCP. During those consultations, held in May and June 2007, member states discussed, as a possible approach, the commissioning of a report on the international patent system, which would address the interests and needs of all member states. The next WIPO General Assembly in September/October of this year will be asked to decide on this matter.

What is the idea behind bringing traditional knowledge, folklore under the IP rights regime? Does bringing more and more items under patent regime make it unwieldy?

The fundamental point is also a very simple one: there is no reason why the IP system should discount or otherwise discriminate against innovation and creativity in a traditional context merely because it is traditional or merely because it represents the collective endeavour of an indigenous people; equally, however, there are distinct characteristics of traditional knowledge systems that suggest that adapted or new forms of protection may be needed.

And the principle of prior informed consent, applied in practice, means that the holders of traditional knowledge should not be obliged in any way to make use of any aspect of the IP system - it has to be a matter of their own informed choice.

Thus WIPO is working firstly to enhance the practical and legal recognition of TK in the patent system, so as to reduce the likelihood of patents being illegitimately granted on TK; and, secondly, to build up, at the request of its member states and with the direct engagement and guidance of TK holders, mechanisms to protect TK against misuse and misappropriation in a manner that is appropriate for the needs, values and interests of indigenous communities and other holders of TK.

What is your take on the demand by developing countries that genetic resources should be handled by the WTO? A group of developing countries is proposing an amendment to the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to make it mandatory to disclose the origin of genetic resources, such as a plant extract used in a medicine, in patent applications.

The idea of creating specific disclosure requirements for patents on inventions making use of genetic resources is clearly a major issue of the day, with important policy and practical implications for the functioning of the patent system and its interaction with other legal instruments and other policy domains.

It is therefore unsurprising that the issue has been raised in a number of distinct forums: in the WTO, as you mentioned, several countries have proposed to amend TRIPS to make such a mechanism mandatory.

Useful work and extensive debate on this issue is also proceeding in other forums as well, notably the Convention on Biological Diversity (CBD) and WIPO itself; UNCTAD has also commissioned a study on it. In WIPO, it has been considered in several processes, and the European Union and Switzerland have both recently tabled significant reform proposals that would give effect to such a disclosure requirement.

WIPO and the CBD have cooperated extensively on this issue - WIPO has prepared two major studies at the direct invitation of the CBD, involving extensive, open stakeholder consultation processes, and this extensive groundwork helps buttress the collective processes of debate and policymaking.

Ultimately, it is not a matter of which organisation should `own' this complex issue, but rather that there is open and constructive collaboration and debate, so that the ultimate outcomes are optimal for the crucial interests that are at stake - ensuring that the patent system functions to promote innovation based on genetic resources, transparency about such innovation, and appropriate and equitable sharing of the benefits, as required by the CBD. Parallel work on this inherently cross-cutting issue should help strengthen and broaden the base of developments in this area, rather than segmenting the issues restrictively.

What is WIPO going to break the logjam on broadcast treaty, which will give broadcasters intellectual property rights over broadcasts over and above existing copyright laws? Why are companies like Intel opposing it?

Discussions on a treaty to protect the rights of broadcasting organisations have been member-state driven. As such, it is up to the member states to decide on how to proceed with these talks. As you may know, this is one of the agenda items at the forthcoming session of the WIPO Assemblies from September 24 to October 3, 2007.

Related rights for broadcasting organisations have been recognised at the international level since 1961 under the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. The draft treaty seeks to update the rights of broadcasting organisations in response to new technologies and at preventing broadcast signal piracy, that is to say exploitation and misappropriation of broadcast signals by unauthorised third parties.

A number of non-governmental organisations, including broadcasting organisation, civil society groups and private sector companies, have been participating in the negotiation process. This ensures that the diversity of views and interests are represented. As Director General, I support and welcome this inclusiveness and transparency. That said , it is not the function of the secretariat to interpret the position of various actors.

What is your take on data exclusivity? Is it another form of IP right?

While data protection has not been included as subject matter of any WIPO administered treaty, it is implicitly characterised as a form of intellectual property in the WTO TRIPS Agreement, as well as subject of detailed implementation through bilateral free trade agreements The approach taken to implementing protection of test data required for regulatory purposes differs considerably between WIPO member states, and the WIPO secretariat does not itself have a 'take' on this topical issue - in particular, it cannot assume the role of arbiter between these diverse views, and instead limits its contribution to technical support and background information.

This is again an issue on which WIPO member states have chosen to exercise flexibilities, e.g. establishing a regime of right-to-remuneration or one of exclusivity over data, by adopting exceptions and limitations to rights conferred.

The original legal basis of protection of such data under the TRIPS Agreement is in fact the WIPO-administered Paris Convention which establishes a very general principle on the suppression of unfair competition without stipulating in detail how that should be interpreted and applied at the national level, which remains an area of policy flexibility.

Product patent regime is perceived as a major hindrance towards access to cheap drugs for AIDS, cancer and other chronic diseases in poor and developing countries. What are the initiatives taken by WIPO to fulfil its obligations towards the common man in these countries?

WIPO offers support on many levels, always at the request of the countries concerned and subject to their own sovereign choices of legal and policy options. Relevant examples include advice on implementing the flexibilities in international IP standards to promote appropriate innovation and access, building domestic capacity to capture the benefits from indigenous innovation, achieving greater transparency in the actual use and reach of relevant patents, providing a neutral forum for the necessary international policy debates on the links between patents and public health, and promoting the recognition and protection of traditional knowledge systems which are important for sustainable health programs in many countries.

How do you see the move by countries such as Brazil and Thailand to introduce compulsory licensing?

A clear line needs to be drawn between the international legal framework, on the one hand, and the choices taken by sovereign countries to exercise their options within the flexibilities provided under international law, on the other. As a matter of fact, compulsory licences have been an important part of the multilateral legal framework of IP since their inclusion in the Art. 5 of the Paris Convention (Treaty Administered by WIPO) in the year 1925 (Hague Diplomatic Conference).WIPO provides support and technical information to assist developing countries to build up their domestic legal, policy and administrative capacity, but does not pass judgment on or otherwise assess the choices taken by national governments.

Given the different levels of economic development, culture and sociology of countries, there is demand for a more balanced IP system from developing countries. How do you strike a balance between these variables?

The huge challenge facing the IP community today is ensuring a balanced and accessible IP system - one that is relevant, e.g. one that serves the interests of all member states and of all stakeholders. As Director General, I have spearheaded efforts to promote international recognition of the strategic importance of IP for development and wealth creation with a view to ensuring the balance that you refer to. For instance, in 1998, I established the WIPO Academy to boost human resource capacity in developing countries.

I also established a special division to look at the specific needs of small and medium sized enterprises (SMEs), which constitute the backbone of most economies and develop practical tools for businesses to leverage IP. I also launched the WIPO global issues program to explore and address, in particular, the needs of indigenous and local communities with respect to traditional knowledge, traditional cultural expressions and access to genetic resources, and the interplay with broader issues such as cultural policy and protection of biodiversity.

I have also promoted initiatives to set up and strengthen collective copyright management societies around the world. Moreover, I established the Office of Strategic Use of IP for Development to promote strategic use of IP and empirical analysis of the economic benefits of IP, as well as a specific unit to assist LDCs to strengthen IP capacity and awareness.

An Enforcement Division with a mandate to raise awareness and assist in capacity building was also established and I have sought to promote an inclusive dialogue with all stakeholders including the creation of a special unit to handle relations with NGOs and civil society. I have taken steps to facilitate the participation of all stakeholders in international IP debates.

It is only by creating a better understanding of the complex issues and the concerns of all parties that it is possible to establish common ground on which to build agreement on workable and sustainable solutions. I am committed to inclusive dialogue and believe that it is the basis on which to build consensus.

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