Proposal by Argentina and Brazil for the Establishment of a Development Agenda for the WIPO .
The next WIPO General Assembly (Thirty-First (15th Extraordinary) Session) will be held in Geneva from September 27 to October 05, 2004. It looks as if this time there will be more political inflammable matter than usual. Argentina and Brazil have tabled Document WO/GA/31/11 conveying a proposal for the establishment of a development agenda for the WIPO. The Document states, inter alia:
"[...] While access to information and knowledge sharing are regarded as essential elements in fostering innovation and creativity in the information economy, adding new layers of intellectual property protection to the digital environment would obstruct the free flow of information and scuttle efforts to set up new arrangements for promoting innovation and creativity, through initiatives such as the ‘Creative Commons’. The ongoing controversy surrounding the use of technological protection measures in the digital environment is also of great concern.
The provisions of any treaties in this field must be balanced and clearly take on board the interests of consumers and the public at large. It is important to safeguard the exceptions and limitations existing in the domestic laws of Member States.
In order to tap into the development potential offered by the digital environment, it is important to bear in mind the relevance of open access models for the promotion of innovation and creativity. In this regard, WIPO should consider undertaking activities with a view to exploring the promise held by open collaborative projects to develop public goods, as exemplified by the Human Genome Project and Open Source Software. Finally, the potential development implications of several of the provisions of the proposed Treaty on the Protection of Broadcasting Organizations that the Standing Committee on Copyright and Related Rights is currently discussing should be examined taking into consideration the interests of consumers and of the public at large. [...]"
In an Appendix, some particular proposals are made, inter alia, as follows:
Adoption of a high-level declaration on intellectual property and development: The Declaration could be adopted by the General Assembly itself or by a specially convened international conference on intellectual property and development. The Declaration should address the development concerns that have been raised by WIPO Member States and the international community at large;
Amendments to the WIPO Convention: In order to ensure that development concerns are fully brought into WIPO activities, the Member States may consider the possibility of amending the Convention Establishing the World Intellectual Property Organization (1967).[...] Paragraph (i) of Article 3 of the WIPO Convention could be amended to read as follows: '(i) to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization, fully taking into account the development needs of its Member States, particularly developing countries and least-developed countries'; and
Participation of civil society: WIPO must take the appropriate measures to ensure the wide participation of civil society in WIPO’s activities, changing WIPO’s terminology with regard to NGOs.
"[...] Humanity faces a global crisis in the governance of knowledge, technology and culture. The crisis is manifest in many ways.
Without access to essential medicines, millions suffer and die;
Morally repugnant inequality of access to education, knowledge and technology undermines development and social cohesion;
Anticompetitive practices in the knowledge economy impose enormous costs on consumers and retard innovation;
Authors, artists and inventors face mounting barriers to follow-on innovation;
Concentrated ownership and control of knowledge, technology, biological resources and culture harm development, diversity and democratic institutions;
Technological measures designed to enforce intellectual property rights in digital environments threaten core exceptions in copyright laws for disabled persons, libraries, educators, authors and consumers, and undermine privacy and freedom;
Key mechanisms to compensate and support creative individuals and communities are unfair to both creative persons and consumers;
Private interests misappropriate social and public goods, and lock up the public domain.
At the same time, there are astoundingly promising innovations in information, medical and other essential technologies, as well as in social movements and business models. We are witnessing highly successful campaigns for access to drugs for AIDS, scientific journals, genomic information and other databases, and hundreds of innovative collaborative efforts to create public goods, including the Internet, the World Wide Web, Wikipedia, the Creative Commons, GNU Linux and other free and open software projects, as well as distance education tools and medical research tools. Technologies such as Google now provide tens of millions with powerful tools to find information. Alternative compensation systems have been proposed to expand access and interest in cultural works, while providing both artists and consumers with efficient and fair systems for compensation. There is renewed interest in compensatory liability rules, innovation prizes, or competitive intermediators, as models for economic incentives for science and technology that can facilitate sequential follow-on innovation and avoid monopolist abuses. In 2001, the World Trade Organization (WTO) declared that member countries should 'promote access to medicines for all.' [...]
As an intergovernmental organization, however, WIPO embraced a culture of creating and expanding monopoly privileges, often without regard to consequences. The continuous expansion of these privileges and their enforcement mechanisms has led to grave social and economic costs, and has hampered and threatened other important systems of creativity and innovation. WIPO needs to enable its members to understand the real economic and social consequences of excessive intellectual property protections, and the importance of striking a balance between the public domain and competition on the one hand, and the realm of property rights on the other. The mantras that "more is better" or "that less is never good" are disingenuous and dangerous -- and have greatly compromised the standing of WIPO, especially among experts in intellectual property policy. WIPO must change.
We do not ask that WIPO abandon efforts to promote the appropriate protection of intellectual property, or abandon all efforts to harmonize or improve these laws. But we insist that WIPO to work from the broader framework described in the 1974 agreement with the UN, and to take a more balanced and realistic view of the social benefits and costs of intellectual property rights as a tool, but not the only tool, for supporting creativity intellectual activity.
WIPO must also express a more balanced view of the relative benefits of harmonization and diversity, and seek to impose global conformity only when it truly benefits all of humanity. A "one size fits all" approach that embraces the highest levels of intellectual property protection for everyone leads to unjust and burdensome outcomes for countries that are struggling to meet the most basic needs of their citizens. [...]"
I do not know whether or not there is a causal link between WIPO debate on the level of Diplomacy and Mr. James Boyle's Manifesto on WIPO and the Future of IP.
All this summarises up to a full scale attack on the political constitution of the WIPO. The large scale public debate on the future of IP seems to be in full swing.
Feel free to contact PA Axel H Horns via e-mail
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Dipl.-Phys. Axel H Horns is Patentanwalt (German Patent Attorney),
European Patent Attorney as well as European Trade Mark Attorney. In particular, he is Member of:
WIPO General Assembly (Thirty-First (15th Extraordinary) Session) will be held in Geneva from September 27 to October 05, 2004. It looks as if this time there will be more political inflammable matter than usual. Argentina and Brazil have tabled 
