By William New, Intellectual Property Watch
For years, some developing countries have insisted that developed countries – which own the vast majority of intellectual property rights – take a singular focus when it comes to offering technical assistance on IP rights: the protection of “northern” property. In recent years, negotiations in venues like the World Intellectual Property Organization have sought to ensure that such assistance also highlights the creation of local IP rights as well as the availability of flexibilities developing countries have under international rules for IP.
Now a three-day conference on IP enforcement being planned for April in Cape Town, South Africa by mostly northern interests has stirred old tensions and seemingly confirmed past fears of developing countries.
“It’s as if the last five years didn’t happen – no WIPO Development Agenda, no discussion on copyright limitations and exceptions, no proposals in favour of libraries and archives, education, blind and visually impaired people,” said Teresa Hackett, Electronic Information for Libraries (EIFL). “But they did happen, and we will work to ensure that delegates attending the African IP Forum hear a diversity of opinion and perspective, and have the opportunity to debate these issues that are critically important to libraries in Africa and around the world.”
The 3-5 April conference entitled, Africa Intellectual Property Forum: Intellectual Property, Regional Integration and Economic Growth in Africa, is being organised by the US Department of Commerce Office of General Counsel Commercial Law Development Program. It is touted as the first Africa-wide ministerial-level event of its kind. The office could not be reached for comment on this story.
The conference might have been better received if billed as an outright enforcement and anti-counterfeiting event. There are some panels and speakers whose focus is local innovation, local brand development, and locally appropriate practices. But the majority of the panels have a focus on enforcement and protection, and are studded with speakers from developed country governments and industry whose focus is the same.
This came as a slap in the face for non-governmental organisations who work on helping the global South grow their domestic economies by localising tools such as intellectual property rights. Many have viewed with hope and a little doubt the 2007 World Intellectual Property Organization Development Agenda, which consisted of 45 agreed recommendations intended to more fully incorporate the development dimension into WIPO activities – particularly technical assistance. The South Africa agenda may appear to many as a throw-back to the days before the Development Agenda existed, and may contain the underlying motive of encouraging strong IP legislation in those countries.
Developing countries readily admit the urgent need for help in fighting a preponderance of counterfeit products flooding across their borders. And developed countries have a legitimate interest in trying to address the problem, which usually involves knock-offs of their goods.
But the debates of the past few years at WIPO, the World Health Organization and the World Trade Organization have demonstrated the strong desire of developing countries to tailor actions to their local situations, and not have them be top-down. Among the tools available to developing countries is to not apply IP rights in certain cases, for instance. Among other effects, this can allow the production of cheaper versions of products, and cheaper legitimate versions can squeeze the market for counterfeits.
Swell of Opposition
A 7 February letter [pdf] to WIPO Director General Francis Gurry, signed by a least 100 NGOs from around the world, calls for the summit to be scrapped altogether over conflicts of interest and the lack of a development and public interest dimension.
A particular concern of NGOs is that the conference will advance anti-counterfeiting legislation across Africa that will lead to damaging restrictions to the local populations and economies. They also raised alarm that the conference does not appear to include discussion on how to use the hard-won flexibilities that developing countries are allowed to employ so as not to apply IP rights if not in their national interest.
“It is worrying to see that a major event such as an Africa-wide forum is being co-organised in partnership with US, France and Japan,” the letter said. “These governments are known for advocating their TRIPS plus agendas in developing countries in the interests of their own industries and priorities.”
“WIPO being an intergovernmental and a specialized agency of the UN must take immediate measures to ensure that all its activities are evidence based, free of conflicts of interest and undue influence of actors that are known to promote an unbalanced IP agenda.”
A key point is that concern over substandard, poor quality medicines is separate from counterfeit medicines and is not in the responsibility of WIPO, but rather the WHO. There have been accusations from some countries in recent years that the counterfeit drug problem is being used to interfere with the market for legitimate generic medicines.
The NGOs also demanded more transparency and inclusiveness in the process of developing a conference. The event is being organised by the US government, but WIPO is named as a co-coordinator and there are proposals in the agenda for many WIPO officials to be on the panels. It appears that even the officials from Africa are being selected by the northern organisers, and the criteria for acceptance to participate in the conference are not posted on the website.
Event sponsor the International Chamber of Commerce (ICC)-Business Action to Stop Counterfeiting and Piracy (BASCAP) by contrast holds separate industry-focussed events at other times and while they are critiqued, there is little question about their purpose or message. There have been questions about WIPO’s involvement in those meetings, however.
This week, several NGOs, such as KEI, Oxfam and Public Citizen, wrote to Cameron Forbes Kerry, the General Counsel for the U.S. Department of Commerce, requesting a review of the South Africa conference “to see if the sponsorship of the event violates Executive Order 13155, on Access to HIV/AIDS Pharmaceuticals and Medical Technologies,” which they said “was issued by President Clinton on May 10, 2000 after an extensive review of U.S. trade policy as it related to access to patented medicines in sub-Saharan Africa.”
That executive order says that “the United States shall not seek, through negotiation or otherwise, the revocation or revision of any intellectual property law or policy” that undermines “access to HIV/AIDS pharmaceuticals or medical technologies,” as long as the countries are within the norms of the TRIPS agreement, according to the groups.
Executive Order 13155 “was designed to protect African consumers from trade pressures on intellectual property and medicine,” KEI President James Love said in a statement. “The 2012 high level meeting shows no recognition of the policy set out in EO 13155, and would extend anti-consumer trade pressures to other sensitive areas for development, such as agriculture, climate change and access to knowledge and culture. Secretary John Bryson and other Obama Administration officials need to take a step back and change the format of the meeting, or cancel the event.”
A host of NGO comments were circulated this week.
“The proposed agenda for the Africa WIPO Summit clearly shows that the summit is being used as a vehicle to drive the agenda of the US, the EU and the pharmaceutical industry to ramp up protection and enforcement of intellectual property,” said Catherine Tomlinson of the Treatment Action Campaign in South Africa. “We urge ours and other African governments to reject the proposed agenda.”
Moses Mulumba of the Center for Health, Human Rights and Development in Uganda said: “It’s a shame that the Africa IP Forum is putting emphasis on IP enforcement agenda. One would expect the continent to be discussing the Development Agenda in light of its social economic challenges in the areas of health, education and agriculture. Over emphasis on IP enforcement is iniquitous of the continent’s population that still badly needs to utilise the policy space provided for by the TRIPS Agreement.”
Andrew Rens, a South African IP specialist and a researcher at Duke University (US), said: “In the years since TRIPS the single most important issue involving intellectual property for Africans has been gaining access to medicines. There is no track nor even a single session on access to medicines.” There also is no session on copyright exceptions for education, despite the South African government being a proponent of these in international negotiations, he said.
Jeremy Malcolm of Consumers International said: “Such a forum will be seen by all not as a bona fide attempt at open discussion on the pros and cons of robust intellectual property protection in the African context, but rather as a cynical effort by foreign governments and multinational corporations to control the framing of these issues for African policy-makers.”
KEI’s James Love said: “The world community should be supportive to the development concerns of persons living in Africa whose population is largely comprised of poor persons and avoid unfair exploitation. By organizing a high level meeting on intellectual property that is dominated by big corporate right holder interests, the US government is taking a step backwards, to exploit consumers rather than to promote development.”
Sangeeta Shashikant, legal advisor at the Third World Network, said: “The US is well known for pressuring developing countries to adopt TRIPS plus standards. The Africa IP Summit is another attempt by the US to advance its aggressive agenda on IP protection and enforcement such as Anti-Counterfeit Agreement (ACTA), that favours the interests of certain powerful multinational companies. The US concept paper and programme totally disregards the numerous developmental and socio-economic challenges facing Africa. Issues of access to affordable medicines, access to knowledge, misappropriation of genetic resources and associated traditional knowledge, farmers’ rights are totally disregarded. Equally absent is a discussion on the value of public interest flexibilities in the IP system to achieve developmental objectives and address social needs. The US agenda is clear. It is about not about development. It is about protecting the interests of its companies, many of which are sponsoring the meeting, proliferating IP propaganda and misinformation. Unless steps are taken to fully reflect development and public interest considerations, and to eliminate actors only interested in an anti-development agenda, the event should not go ahead.”
Prof. Brook Baker of Northeastern University law school and Health GAP, said: It is deeply problematic that the Obama administration continues to pursue efforts to strengthen, widen, and lengthen patent, data, and copyright monopolies in African countries that desperately need expanded access to medicines, educational materials, and climate control technologies and that it simultaneously seeks even stronger enforcement of IP protections than what is currently required under international law. Carrying the policy portfolio of Big Pharma and other IP-based multinationals under the guise of addressing Africa’s needs, the proposed African IP Summit is a chilling example of US duplicity and conflict of interest at its worst. However, it is equally problematic if Africa leaders and policy makers, some of whom are already complicit with the US agenda, continue to drink the IP KoolAid as they’ve done with proposed anti-counterfeiting legislation and with their long-lasting lethargy in amending their IP laws to take full advantage of TRIPS flexibilities and thereafter to use those flexibilities to access medicines and other essential technologies.”