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-----Original Message----- From: a2k-admin@lists.essential.org [mailto:a2k-admin@lists.essential.org] On Behalf Of Karsten Gerloff Sent: April 15, 2005 10:55 AM To: a2k@lists.essential.org 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 Karsten

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 community.

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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