WIPO is AWOL

The World Intellectual Property Organization (WIPO) is absent without leave (AWOL). The timing couldn’t be worse.

For over 50 years, WIPO has been at the center of intellectual property in the global economy. Its 26 treaties, including the Berne Convention and the Paris Convention, provide content for many of the rights and obligations in the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Many of these treaties also feature prominently in trade agreements throughout the world.

Yet recently, WIPO has appeared more interested in critiquing intellectual property, rather than defending it. At WTO meetings, and in its reports, WIPO hasn’t raised the slightest concern about the frenzy of intellectual property waivers being proposed. Starting with the June 2022 “TRIPS waiver,” which made it easier for developing countries to use compulsory licenses (CLs) for COVID vaccines, WIPO failed to meaningfully question the need for a waiver, and instead focused on providing “technical assistance” to countries interested in “patent-related flexibilities.” To date, the TRIPS waiver has not been utilized once. 

Moreover, WIPO has been quiet, if not complicit, in WTO talks about how to side-step patents to fight climate change. Worse, it has failed to caution against the emerging view that CLs are a legitimate tool of industrial policy more generally.

At meetings of the TRIPS Council in late 2020, for example, WIPO had a lot to say about the need to protect traditional knowledge and folklore, but little to say about developing countries’ wish list for CLs. India argued that non-violation complaints shouldn’t be actionable at the WTO, because this would limit its “regulatory policy space” to pursue “public policy objectives.”’ Nigeria was even more succinct, confessing that CLs “can certainly be beneficial to local manufacturing industries.”

WIPO didn’t respond to either comment. 

At TRIPS council meetings just before the 12th Ministerial Conference (MC12), WIPO was derelict in its duty to stand up for intellectual property. Chile, for example, openly declared that TRIPS “flexibilities” should be used “as tools for development.” India called for the moratorium on WTO litigation over CLs to be extended till MC13, but Tanzania, speaking on behalf of the African Group, insisted that it should be made permanent. 

Dissenting voices were raised at these meetings, but WIPO’s wasn’t one of them. Crickets. 

After agreeing to the TRIPS waiver at MC12, the WTO’s attention turned to whether diagnostics and therapeutics should also be included. WIPO offered no leadership on this crucial question despite member states’ pleas to help inject evidence and facts into the debate. Embarrassingly, the vacuum of evidence supporting a TRIPS waiver expansion led the United States Trade Representative to request the US International Trade Commission to look into COVID and intellectual property. WIPO was again nowhere to be found. The range of intellectual property that could be implicated is breathtaking, particularly because there’s no working definition of a COVID-related diagnostic and therapeutic.

WIPO has also failed to raise concern about the slippery slope. For years, developing countries have argued that the TRIPS waiver should be a template for technology transfer. For example, attendees at the UN’s COP27 called for a TRIPS waiver to fight climate change. The African Group has proposed waiving patents to help with green industrialization more generally. Rather than warn that this waiver frenzy would chill innovation, WIPO’s Standing Committee on the Law of Patents has produced over 30 working documents suggesting it’s more interested in how developing countries can work around intellectual property. 

For example, one working paper looks at how strong intellectual property laws must prevent “evergreening” of patents, using India’s rejection of a secondary patent to J&J on Bedaquiline, which is prescribed to for multidrug-resistant tuberculosis. Another working paper is about how Colombia issued a CL on Dolutegravir-based compounds without first asking for permission from the patent holder. Yet another working paper on biotechnology has a title that speaks for itself: “Exclusions from Patentable Subject Matter and Exceptions and Limitations to the Rights.”

Finally, this year WIPO will be convening a diplomatic conference concerning genetic resources and traditional knowledge. The conference came into fruition abruptly in 2022, and is designed to conclude with a legal instrument impacting a range of stakeholders. This activity represents yet another workstream which threatens the innovative ecosystem. Proponents of weakening intellectual property systems pushed for this conference, and will seek to enshrine mandatory disclosure requirements for genetic resources in patent systems around the world, creating uncertainty for innovators. 

WIPO’s Director General Daren Tang has set his sights on building an “inclusive, balanced, vibrant and forward-looking intellectual property ecosystem.” Eroding intellectual property isn’t the way to get there. Indeed, serious discussion is warranted about the direction WIPO has taken over the last few years. Some member states have been emboldened by the “change” in WIPO’s activities and are championing a diminished interest in “protecting the interests of right-holders.” The United States and allies must ask themselves: is this the way, or is it time for a course correction?