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Africa: Intellectual Property

AfricaFocus Bulletin
Nov 7, 2004 (041107)
(Reposted from sources cited below)

Editor's Note

"Humanity stands at a crossroads - a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from ideas and opportunities [to share knowledge], or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies [on intellectual property]? - Geneva Declaration on the Future of the World Intellectual Property Organization

Despite continued U.S. refusal to allow the use of cost-effective generic drugs in its international AIDS programs (see, there is momentum on other fronts in the international campaign to give priority to health and development needs over narrow interpretations of patent rights. The European Commission on October 29 proposed a new regulation to allow generic drug manufacturers to produce patented medicines for exports. Earlier in October, the World Intellectual Property Organization (WIPO) adopted a proposal by developing countries to fully integrate development priorities into its consideration of intellectual property issues.

WIPO, though much less prominent than the powerful World Trade Organization (WTO), is the official UN agency with responsibilities including technical assistance to countries on intellectual property rights, including patents, copyrights, and other related issues. In recent years experts, non-governmental organizations, and developing countries have lobbied actively for a more proactive role for WIPO, noting that "humanity faces a global crisis in the governance of knowledge, technology and culture." In response the WIPO assembly on October 4 approved a proposal for a "development agenda" presented by Brazil, Argentina, and other developing countries.

This AfricaFocus Bulletin presents the unofficial Geneva Declaration and excerpts from the developing country proposal on this issue. These documents, as well as much additional background information and copies of the Geneva Declaration in French, Spanish, and other languages, are available at

On the topic of access to medicines in particular, the Health Systems Resource Centre of the British Government's Department for International Development has just released several new papers warning of implications of new developments in intellectual property and trade laws. In particular, a paper on "Access to Medicines in Under-served Markets" calls spells out the new difficulties that will arise next year for production of new generic drugs when tighter patent rules come into effect in India and China. See for this and other related publications.


Many thanks to those of you who have recently sent in a voluntary subscription payment to support AfricaFocus Bulletin. If you have not yet made such a payment and would like to do so, please visit for details.

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Geneva Declaration on the Future of the World Intellectual Property Organization (WIPO)

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."

Humanity stands at a crossroads - a fork in our moral code and a test of our ability to adapt and grow. Will we evaluate, learn and profit from the best of these new ideas and opportunities, or will we respond to the most unimaginative pleas to suppress all of this in favor of intellectually weak, ideologically rigid, and sometimes brutally unfair and inefficient policies? Much will depend upon the future direction of the World Intellectual Property Organization (WIPO), a global body setting standards that regulate the production, distribution and use of knowledge.

A 1967 Convention sought to encourage creative activity by establishing WIPO to promote the protection of intellectual property. The mission was expanded in 1974, when WIPO became part of the United Nations, under an agreement that asked WIPO to take "appropriate action to promote creative intellectual activity," and facilitate the transfer of technology to developing countries, "in order to accelerate economic, social and cultural development."

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 work from the broader framework described in the 1974 agreement with the UN, and 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.

The WIPO General Assembly has now been asked to establish a development agenda. The initial proposal, first put forth by the governments of Argentina and Brazil, would profoundly refashion the WIPO agenda toward development and new approaches to support innovation and creativity. This is a long overdue and much needed first step toward a new WIPO mission and work program. It is not perfect. The WIPO Convention should formally recognize the need to take into account the "development needs of its Member States, particularly developing countries and least-developed countries," as has been proposed, but this does not go far enough. Some have argued that the WIPO should only "promote the protection of intellectual property," and not consider, any policies that roll back intellectual property claims or protect and enhance the public domain. This limiting view stifles critical thinking. Better expressions of the mission can be found, including the requirement in the 1974 UN/WIPO agreement that WIPO "promote creative intellectual activity and facilitate the transfer of technology related to industrial property." The functions of WIPO should not only be to promote "efficient protection" and "harmonization" of intellectual property laws, but to formally embrace the notions of balance, appropriateness and the stimulation of both competitive and collaborative models of creative activity within national, regional and transnational systems of innovation.

The proposal for a development agenda has created the first real opportunity to debate the future of WIPO. It is not only an agenda for developing countries. It is an agenda for everyone, North and South. It must move forward. All nations and people must join and expand the debate on the future of WIPO.

There must be a moratorium on new treaties and harmonization of standards that expand and strengthen monopolies and further restrict access to knowledge. For generations WIPO has responded primarily to the narrow concerns of powerful publishers, pharmaceutical manufacturers, plant breeders and other commercial interests. Recently, WIPO has become more open to civil society and public interest groups, and this openness is welcome. But WIPO must now address the substantive concerns of these groups, such as the protection of consumer rights and human rights. Long-neglected concerns of the poor, the sick, the visually impaired and others must be given priority.

The proposed development agenda points in the right direction. By stopping efforts to adopt new treaties on substantive patent law, broadcasters rights and databases, WIPO will create space to address far more urgent needs.

The proposals for the creation of standing committees and working groups on technology transfer and development are welcome. WIPO should also consider the creation of one or more bodies to systematically address the control of anticompetitive practices and the protection of consumer rights.

We support the call for a Treaty on Access to Knowledge and Technology. The Standing Committee on Patents and the Standing Committee on Copyright and Related Rights should solicit views from member countries and the public on elements of such a treaty.

The WIPO technical assistance programs must be fundamentally reformed. Developing countries must have the tools to implement the WTO Doha Declaration on TRIPS and Public Health, and "use, to the full" the flexibilities in the TRIPS to "promote access to medicines for all." WIPO must help developing countries address the limitations and exceptions in patent and copyright laws that are essential for fairness, development and innovation. If the WIPO Secretariat cannot understand the concerns and represent the interests of the poor, the entire technical assistance program should be moved to an independent body that is accountable to developing countries.

Enormous differences in bargaining power lead to unfair outcomes between creative individuals and communities (both modern and traditional) and the commercial entities that sell culture and knowledge goods. WIPO must honor and support creative individuals and communities by investigating the nature of relevant unfair business practices, and promote best practice models and reforms that protect creative individuals and communities in these situations, consistent with norms of the relevant communities.

Delegations representing the WIPO member states and the WIPO Secretariat have been asked to choose a future. We want a change of direction, new priorities, and better outcomes for humanity. We cannot wait for another generation. It is time to seize the moment and move forward.

Developing Countries' Proposal for Establishing a Development Agenda for WIPO

Third World Network

TWN Info Service on WTO and Trade Issues (Oct04/3)

4 October 2004

A major development of potentially great significance took place at the General Assembly of the World Intellectual Property Organisation (WIPO), held in Geneva on 27 September to 5 October 2004: the presentation of a proposal by several developing countries to establish a "Development Agenda" for WIPO.

The proposal (which has the document number WO/GA/31/11, dated August 27 2004) was originally submitted by Argentina and Brazil. It was co-sponsored by Bolivia, Cuba, Dominican Republic, Ecuador, Iran, Kenya, Sierra Leone, South Africa, Tanzania and Venezuela. On 4 October, Egypt announced it was also joining as a co-sponsor.

The proposal was discussed extensively by the Assembly in formal and informal sessions on 30 September, 1 and 2 October and a decision welcoming it was adopted by the WIPO General Assembly on 4 October.

Proposal by Argentina and Brazil for the Establishment of a Development Agenda for the World Intellectual Property Organization

[excerpts: for full text see]

Submitted to the 40th Series of Meetings of the Assemblies of the Member States of WIPO and to the 31st Session of the WIPO General Assembly

27 September -5 October 2004


II - the Development Dimension and Intellectual Property Protection

Technological innovation, science and creative activity in general are rightly recognized as important sources of material progress and welfare. However, despite the important scientific and technological advances and promises of the 20th and early 21st centuries in many areas, a significant "knowledge gap", as well as a "digital divide", continue to separate the wealthy nations from the poor.

In this context, the impact of intellectual property has been widely debated in past years. Intellectual property protection is intended as an instrument to promote technological innovation, as well as the transfer and dissemination of technology. Intellectual property protection cannot be seen as an end in itself, nor can the harmonization of intellectual property laws leading to higher protection standards in all countries, irrespective of their levels of development.

The role of intellectual property and its impact on development must be carefully assessed on a case-by-case basis. IP protection is a policy instrument the operation of which may, in actual practice, produce benefits as well as costs, which may vary in accordance with a country's level of development. Action is therefore needed to ensure, in all countries, that the costs do not outweigh the benefits of IP protection.

In this regard, the adoption of the Doha Declaration on the TRIPS Agreement and Public Health at the 4th Ministerial Conference of the WTO represented an important milestone. It recognized that the TRIPS Agreement, as an international instrument for the protection of intellectual property, should operate in a manner that is supportive of and does not run counter to the public health objectives of all countries.


III - Integrating the Development Dimension into WIPO's Activities

As a member of the United Nations system, it is incumbent upon the World Intellectual Property Organization (WIPO) to be fully guided by the broad development goals that the UN has set for itself, in particular in the Millennium Development Goals. Development concerns should be fully incorporated into all WIPO activities. WIPO's role, therefore, is not to be limited to the promotion of intellectual property protection. ...

We therefore call upon WIPO General Assembly to take immediate action in providing for the incorporation of a "Development Agenda" in the Organization's work program.

IV - the Development Dimension and Intellectual Property Norm-Setting: Safeguarding Public Interest Flexibilities

WIPO is currently engaged in norm-setting activities in various technical Committees. Some of these activities would have developing countries and LDC 's agree to IP protection standards that largely exceed existing obligations under the WTO's TRIPS Agreement, while these countries are still struggling with the costly process of implementing TRIPS itself. ...

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. ...

VI - The Development Dimension and Intellectual Property Enforcement

Intellectual property enforcement should also be approached in the context of broader societal interests and development-related concerns, in accordance with article 7 of TRIPS. The rights of countries to implement their international obligations in accordance with their own legal systems and practice, as clearly foreseen by Article 1.1 of TRIPS, should be safeguarded. ...

VII - Promoting "Development Oriented" Technical Cooperation and Assistance

WIPO is the main multilateral provider of technical assistance in the field of intellectual property. By virtue of the 1995 agreement with the WTO, it plays an important role in providing developing countries with technical assistance to implement the TRIPS agreement. ... must be, in particular, neutral, impartial and demand-driven. ...

WIPO's legislative assistance should ensure that national laws on intellectual property are tailored to meet each country's level of development and are fully responsive to the specific needs and problems of individual societies. It also must be directed towards assisting developing countries to make full use of the flexibilities in existing intellectual property agreements, in particular to promote important public policy objectives.

VIII - A Member-driven Organization Open to Addressing the Concerns of All Stakeholders, in Particular Civil Society

A balanced system of intellectual property protection should service the interests of all sectors of society. ...

Currently, in WIPO, the term NGO is used to describe both public interest NGOs and user organizations. This creates confusion and does not seem consistent with existing UN practice, as implemented in most of the UN specialized agencies. It is thus necessary, in WIPO, to take appropriate measures to distinguish between user organizations representing the interests of IP right holders and NGOs representing the public interest.

Subsequently, WIPO should foster the active participation of public interest non-governmental organizations in its subsidiary bodies to ensure that in IP norm-setting a proper balance is struck between the producers and users of technological knowledge, in a manner that fully services the public interest.


AfricaFocus Bulletin is an independent electronic publication providing reposted commentary and analysis on African issues, with a particular focus on U.S. and international policies. AfricaFocus Bulletin is edited by William Minter.

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