It is widely accepted that intellectual property (IP) is an important tool for economic growth. However, there is not a single, uniform approach to IP that could be cut and paste from one country to another. Even though the IP system has been considerably harmonized so as to avoid that discriminatory treatment and lack of sufficient protection become non-tariff barriers to free trade, WIPO Member States can still resort to existing flexibilities so as to promote the implementation of public policies and encourage the strategic use of IP. In fact, a number of countries may see in IP simply a bargaining tool for gaining access to foreign markets. But other countries may be interested in using the appropriate IP tools for promoting dissemination and transfer of technology. Other countries may prefer to focus on maintaining an economic free competitive environment. Developing and developed countries alike may concentrate on addressing the problem of the high costs of health care and would seek mechanisms that reduce the impact of IP, if any, on those costs. A number of Members have also expressed the view that IP should serve the promotion of tourism or the preservation of cultural heritage.
Having those concerns in view, the Secretariat of WIPO has developed a vast array of flexibilities that WIPO Members may resort to. Most of those flexibilities were created in consultation with Members. All of them suggest a new approach to IP, by means of what could designated as "creative thinking." But flexibilities themselves should not be seen as a straightjacket, a format that could horizontally be applied to all developing countries. Some of them are convenient for the purpose of special public policies but not for others, and therefore they would not be of interest to Members that might have elected different priorities.
The Secretariat of WIPO has provided assistance as regards of implementation of international obligations, both in the context of multilateral treaties as well as of bilateral free trade agreements. It is not the role of the Secretariat to interfere in bilateral negotiations between sovereign States, but rather to indentify, when requested, the legal implications of the agreement in question as to the internal legal framework and practice of the requesting country. Frequently, national laws need to be revised as a consequence of the agreement, and in this connection the Secretariat has advised on drafting the different alternatives available to implement the agreement, such as the establishment of new procedures with the national IP office and the identification of flexibilities that are available under or that are generated by the agreement.
It goes without saying that advice provided by the Secretariat on flexibilities is strictly bilateral, confidential and neutral. Confidentiality is of utmost importance. There are two reasons for this: on the one hand, such assistance entails the interpretation of the TRIPS Agreement; because the WIPO Secretariat has not the mandate to perform such task, that interpretation is made upon specific request by the Member State in question and the decision to accept it or not lies ultimately and exclusively in the hands of that Member; on the other hand, as noted, such assistance not only covers multilateral provisions, but also bilateral and, frequently, national provisions; it is not necessary to emphasize the extreme sensitivity of such issues, let alone the fact that sometimes matters are exclusively of a national dimension.
The WIPO Secretariat continues receiving requests for assistance on flexibilities exactly because it has been able to maintain a high level of trust and reliability by its Members. In view of this aspect of confidentiality, the Secretariat’s advice on flexibilities has always been given by its staff and never by external consultants. There are no plans to change this.