Gurstein, Michael on Sat, 16 Apr 2005 06:24:04 +0200 (CEST)

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<nettime> FW: [A2k] India's Statement at WIPO

The previously obscure World Intellectual Property Organization has
suddenly emerged as the battleground for the creation of an equitable
"development agenda" for the Information Society.

Stay tuned...


-----Original Message-----
[] On Behalf Of Karsten Gerloff
Sent: April 15, 2005 10:55 AM
Subject: [A2k] India's Statement at WIPO

Hi all,
here's India's statement at the WIPO IIM/1. Since it is extremely
clearly phrased in summing up the Friends of Development proposal, it
made quite a splash on Tuesday.

Best regards

Statement by India at the Inter-Sessional Intergovernmental Meeting on a
Development Agenda For WIPO, April 11-13, 2005

Mr. Chairman,

Let me congratulate you on your election to Chair this very important
meeting. This is, indeed, a special day for the organization. It is the
first time that a Development Agenda has been taken up for consideration
in WIPO. We have high expectations that the outcome of this session of
the IIM and its subsequent sessions will lead to mainnstreaming the
development dimension into all areas of WIPO's work and activities. We
are confident that under your able guidance, we will be able to achieve
agreement on the realisation of this very important objective - an
objective shared by all member states of WIPO, developed or developing.
You can count on our delegation's full support in reaching this goal.

I also take this opportunity to congratulate the Group of Friends of
Development for introducing the proposal for a Development Agenda, first
during the General Assemblies meeting in Semptember 2004 and now on a
further elaboration of the issues in the Document WO/GA/31/14. We fully
support the porposal, in particular, the establishment of a WIPO
Evaluation and Research Office (WERO). We note that the issues discussed
in their proposal are not exhaustive. They, however, cover the most
important areas relating to WIPO's mandate and governance, norm setting,
technical cooperation and transfer of technology. The Elaboration of
Issues paper of the Group constitutes an excellent starting point for
establishing a "development agenda" in WIPO. This would strengthen the
organisation and ensure that its governance structure is more inclusive,
transparent, and democratic, and, most important, that it is truly a
member-driven organisation.

As pointed out in the two documents presented by the Group of Friends of
Development, we agree that much more needs to be done in WIPO to reach
the effective results that meet the challenges of development.
"Development", in WIPO's terminology means increasing a developing
country's capacity to provide protection to the owners of intellectual
property rights. This is quite a the opposite of what developing
countries understand when they refer to the 'development dimension'. The
document presented by the Group of Friends of Development corrects this
misconception - that development dimension means technical assistance.

The real "development" imperative is ensuring that the interest of
Intellectual Property owners is not secured at the expense of the users
of IP, of consumers at large, and of public policy in general. The
proposal therefore seeks to incorporate int international IP law and
practice, what developing countries have been demanding since TRIPS was
forced on them in 1994.

The primary rationale for Intellectual Property protection is, first and
foremost, to promote societal development by encouraging technological
innovation. The legal monopoly granted to IP owners is an exceptional
departure from the general principle of competitive markets as the best
guarantee for securing the interest of society. The rationale for the
exception is not that extraction of monopoly profits by the innovator
is, of and in itself, good for society and so needs to be promoted.
Rather, that properly controlled, such a monopoly, by providing an
incentive for innovation, might produce sufficient benefits for society
to compensate for the immediate loss to consumers as a result of the
existence of a monopoly market instead of a competitive market. Monopoly
rights, then, granted to IP holders is a special incentive that needs to
be carefully calibrated by each country, in the light of its own
circumstances, taking into account the overall costs and benefits of
such protection.

Should the rationale for a monopoly be absent, as in the case of
cross-border rights involving developed and developing countries, the
only justification for the grant of a monopoly is a contractual
obligation, such as the TRIPS agreement, and nothing more. In such a
situation it makes little sense for one party, especially the weaker
party, to agree to assume greater obligations than he is contractually
bound to accept. This, in short, is what the developed countries have
sought to do so far in the context of WIPO. The message of the
Development Agenda is clear: no longer are developing countries prepared
to accept this approach, or continuation of the status quo.

Even in a developed country, where the monopoly profits of the domestic
IP rights holders are recycled through the economy and so benefit the
public in varying degrees, there is continuing debate on the equity and
fairness of such protection, with some even questioning its claimed
social benefits. Given the total absence of any mandatory cross-border
resource transfers or welfare payments, and the absence of any
significant domestic recycling of the monopoly profits of foreign IP
rights holders, the case for strong IP protection in developing
countries is without any economic basis. Harmonization of IP laws across
countries with asymmetric distribution of IP assets is, clearly,
intended to serve the interest of rent seekers in developed countries
rather than that of the public in developing countries.

Neither intellectual property protection, nor the harmonization of
intellectual property laws leading to higher protection standards in all
countries irrespective of their level of development, can be an end in
itself. For developing countries to benefit from providing IP protection
to rights holders based in developed countries, there has to be some
obligation on the part of developed countries to transfer and
disseminate technologies to developing countries. Even though the
intended beneficiary of IP protection is the public at large, the
immediate beneficiaries are the IP rights holders, the vast majority if
whom are in developed countries. Absent an obligation on technology
transfer, asymmetric IP rent flows would become a permanent feature, and
the benefits of IP protection would forever elude consumers in
developing countries. As pointed out in the proposal by the Group of
Friends of Development, technology transfer should be a fundamental
objective of the global intellectual property system. WIPO is recognised
as a specialised agency with the responsibility for taking appropriate
measures for undertaking this and we expect the "development agenda" to
address this issue.

Technical assistance should be primarily directed towards impact
assessment and enabling the developing countries, including LDCs to
utilize the space within the prevailing arrangements in multilateral IP
treaties and conventions.

The current emphasis of Technical Assistance on implementation and
enforcement issues is misplaced. IP Law enforcement is embedded in the
framework of all law enforcement in the individual countries. It is
unrealistic, and even undesirable to expect that the enforcement of IP
laws will be privileged over the enforcement of other laws in the
country. Society faces a considerable challenge to effectively protect,
and resolve disputes over, physical property. To expect that the police,
the lawyers and the courts should dedicate a sizable part of society's
enforcement resources for protecting intangible intellectual property,
is unrealistic. Therefore, WIPO's current focus of Technical Assistance
should be shifted to other areas such as development impact assessment.
This would, inter alia, inspire civil society and others to play a
supportive role, if the impact is seen to be favourable to the

In conclusion, it is important that developed countries and WIPO
acknowledge that IP protection is an important policy instrument for
developing countries, one that needs to be used carefully. While the
claimed benefits of strong IP protection for developing countries are a
matter of debate - and nearly always in the distant future - such
protection invariably entails substatial real an immediate costs for
these countries. In formulating its IP policy, therefore, each country
needs to have sufficient flexibility so that the cost of IP protection
does not outweigh the benefits. It is clearly in the interest of
developing countries that WIPO recognizes this and formulates its work
program accordingly - including its 'technical assistance' - and not
limit its activities, as it currently does, to the blind promotion of
increasingly higher levels of IP protection. This is where WIPO, as a
specialized UN agency, can make a major impact - by truly incorporating
the development dimension into its mission - in letter and in spirit, so
that it is appropriately reflected in all its instruments. Certainly it
will result in a revitalisation of WIPO as an organisation sensitive to
integrating the development concerns of developing countries into all
areas of its work.

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