[A2k] Blogging WIPOand the Development Agenda, Second IIM (Day 2)

[thiru@cptech.org]

Blogging WIPOand the Development Agenda, Round 2
The Second IIM, June 20-22: Day 2
Notes by:
Ren Bucholz, ren at eff.org, Electronic Frontier Foundation [RB]
Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on Technology
[TB]

[NOTE: This is not an official transcript. Any errors and ommissions are
regretted.]

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-------------------

WIPO Second IIM, June 20-22: Day 2

10:20 A.M.

~ African Union: The views expressed by Morocco (African Group) and Benin
(LDCs) are
in line with our views.

NEPAD has drawn a new framework for cooperation.  We recognized that IP is
one of
the major elements of development and should be at the center of all
development
processes.  It is true that WIPO has made major commitments to development
and the
time has come for WIPO to be more involved.

~ Union for the Public Domain:

~ World Blind Union: This is the first time that WBU has participated in
the IIM.
Expresses concern that none of the country proposals deal with people with
disabilities, and suggests that a truly inclusive development agenda would
address
this oversight.

Q: So, what might this have to do with copyright?  A: Improperly deployed
copyright
regimes can hinder the employment and access to knowledge of disabled
people.  Cites
lack of standard exchange formats for people with sight problems and the
poorly
designed and implemented TPMs that keep people with disabilities from
accessing
information.

Hopes that a finally formulated DA will address the needs of the disabled
community
and will take concrete steps to address those problems.

~ European Patent Office: I would like to make two comments

1) General - In parallel to trying to get IP to foster development needs,
we need to
use the currently available possibilities.  Many states use the IP system
to foster
development.  The IP system has an enabling aspect.  So how do we use the
system for
technology transfer?  And why don't we see these transfers happening in a
more
organized way?  Time is short, and we should make that happen.

2) Specific - Regarding the current debate - if you take an outside
observer to these
discussions, there is more common ground than differences between the
Brazilian and
Canadian proposals to structure the current debates.  We should use all the
available tools to achieve consensus.  That is why I appreciate the
proposal by the
International Bureau to have informal consultations.  Let us not restrict
ourselves
to formal proceedings.

~ Chair: On structure, Brazil & its allies have submitted a new proposal.
Keeping
in mind this and the other proposals, I would like to circulate a room
document that
has "clusters" of main themes.  We can add anything that the chair missed.
 That
document is available here:

<a href="http://homes.eff.org/~renbucholz/wipo/brazil_list1of2.png">Page
1</a> | <a
href="http://homes.eff.org/~renbucholz/wipo/brazil_list2of2.png">Page 2</a>

-=-=-=15 minute break=-=-=-

~ Chair: Passes to Bahrain.

~ Bahrain: We need a little more time for consultation.  We do agree with
your
proposal, but more time would be helpful.

~ Canada: We see a combination of Canada's proposal and other proposals.
This
clustering and possible topics paper does not have legal status.

~ Brazil: We feel that there has been a "butchering" of the proposals,
especially of
our own, broader proposal.

We should get a complete listing of the concrete proposals presented to
the IIM.
This may avoid a lengthy negotiation as to what category each item should be
assigned to.

~ Mexico: Feels that the chair's suggestion helps.

~ India:  We thank you for this attempt to bring some some structure to these
discussions.  We thought there was already a structure based on the proposals
presented.  As Brazil noted, the mandate of this IIM is to consider specific
proposals.  We recognize the difficulty that could come up and indeed has
come up
with the clusterization of issues.  A lot of the items that have
identified been put
in the first cluster should belong in another cluster.  A lot of time
could be spent
arguing as to what item should beling in what cluster.

We strongly support the discussion of the actual proposals presented to
the IIM.  We
should not waste time arguing as to what item belongs in what cluster.

Maybe we should maybe discuss the proposals at random so no one proposal is
marginalized at the expense of others.

~ Luxembourg: Prefer Canadian proposal, but are also open to the Brzillian
proposal
of listing topics.

~ Chile: As we stated yesterday, we are comfortable working with a list as
proposed
by Brazil.  We would like to see the list Brazil has proposed.

~ France: This is a step forward.  If we don't have structure, we will
waste time.
We therefore support the Chair's approach.

~ Colombia: We like the flexibility of Brazil's proposal, and we would go
along with
it.

~ Argentina: We need some clarification.  What is the problem?  There has
been a
clear mandate from the General Assembly to consider the Development
Agenda.  The
proposals provide a basis for discussions.  We already know the general
and specific
issues at hand. We are not here to negotiate the content of debate. The
original
GFoD proposal was presented in September.  Member States have had ample
time to
consider these documents.  We need to delve into the substance of the
debate.  Due
to the attitude of certain delegations, these discussions are stalling.

~ Morocco: Summary of yesterday's African group statement.

~ Pakistan: What we have here are talks about talks.  We also have another
option.
We have been given a mandate by the GA, and that mandate was unambiguous.
That was
to examine the proposals with regard to the development agenda.  We desire
a list of
proposals, like that considered by Brazil.  We also requested yesterday
that the
chairman provide some direction, and are greatful with his attempts so far.
However, there seems to be some resistance from some countries.
Clustering forces a
particular lens on each proposal, while allowing each proposal to be aired
separately allows a particular country to control that lens.  We hope that
you will
start that substantive discussion, because we could continue this particular,
fruitless line of reasoning indefinitely.

~ Chair: I still have three delegations on my list, and we are going to
take a short
break for me to focus my thoughts.  When a writer writes a novel, he
organizes it
into chapters.  This seemed logical to us to present these different
chapter/clusters without prejudice to the actual topics.  We could draw
lots, go
chronologically, or whatever.  I agree that we should move forward.

~ United Kingdom: The benefits of the meeting should outweigh the costs of
the
meeting.   We are happy to discuss our proposal on a proposal by proposal
basis.
One suggestion that we have is to discuss the role and mandate of WIPO
first which
is least controversial.  We are flexible on how to move forward.

~ Iran: We suggest a method where we cluster issues within each proposal.

~ Chair: We have received a document from Brazil, and the chair wants to
ask them to
speack on the document.

~ Kenya: Supports proposal of Brazil.

~ Bahrain: I was unclear - we support immediate debate.  When we asked for
more
time, it was to be able to reorganize our document into your clusters.

~ Brazil: The proposal we have made has not yet been distributed to all
Member
Countries.  It is an alternative to categorization.  It is a listing of
action-oriented proposals.  The order is not important to us.  A lottery
would be
fine.  The action-oriented proposals are actually contained in the documents
submitted to the IIM.  This is the principle we call for.  This is not an
exhaustive
list nor is it written in stone.

~ Chair: If we have some flexibility, we could use this list to begin.  We
can take
a break to consider the proposal.  I hope this list circulated by Brazil
is accepted
by Members.

-=-=-=BREAK=-=-=-

~ US: Glad to see Brazillian document, however, they have a problem with
how their
own proposals are cahracterized.  Would like to propose that the US have
the ability
to characterize their own proposal, and suspect that other countries would
like this
opportunity as well.

[RB: Note that despite the invitation to comment, nobody else has a
problem.  On Day
3 one country asks to have their own proposal joined with another.]

~ Morocco: Thanks Brazil.

~ India:  We would like clarification by the coordinator of the African Group
(Morocco).  We do not recall a written proposal submitted by the African
Group to
the IIM. We are of the understanding that we are to discuss proposals that
were
submitted in writing to the IIM.

Regarding the chair's recommendation that we discuss "less controversial"
aspects
first,  this is somewhat subjective depending on the point of view of the
respective
delegations.

~ Bahrain: We endorse the Brazillian proposal in principle, though we note
that some
points from our proposal were ommitted.  Reserve the right to resubmit.

~ Morocco: My last comment was the essence of yesterday's African Group
statement.
It was our understanding that the Brazillian list was an account of
particular
concerns.  If this document is in fact closed, we support the first
document of
clusters (the Chair's submission).

~ Algeria: Offers support for Morocco's statement, and reminds that the
African
group's concerns must be considered one way or another.

~ India: One of the important features of the list presented by Brazil is
that it's
based on written proposals submitted to the IIM.  We made our intervention
in a
positive spirit.  Perhaps the African Group statement could be recast in a
written
form and submitted as a proposal with actionable elements.

~ Brazil: Would like to further elaborate on the ideas behind our
document.  It is
an open document.  It is not an exclusive list.  The document put forth by
GFoD is
convergent with the African Group concerns and some members of the GFoD
are members
of the African Group.  It is very important to work on the basis of formal
documents
that were presented by Members.

~ Chair:  I thank all of you for your efforts.  This list presented by
Brazil is an
open list.  The Presidency will use it to improve on the language and
fine-tuning it
and improving it.  We will try to set up a mechanism to accelarate the
debate.  All
subjects will be discussed.

-=-=-=LUNCH=-=-=-

Chair: Hopes we can continue the positive energy from this morning's session.
Sometimes a good lunch can make you drowsy, but he hopes that this is not
the case
with this group.

Received only one proposal over lunch, which was from the US and is
intended to
redraft item 10.  Hopes that we get more.  These proposals will allow us
to draft a
document for the GA that indicates what work remains to be done.

Would like to spend 1 hour on each topic, starting from least
controversial.  Hopes
that we will review at least 9 by end of day tomorrow.  Tomorrow afternoon
will be
spent reviewing the chair's report.  We'll start in this order:

1) Item 10, the US would prefer to say [garbled]
2) Item 8
3) Item 13

~ Argentina: We are not calling into question the changed proposed.  We
think that
it will be helpful if we can find out what terms are used to evaluate how
controversial a topic may be.  We think that item 4 is the most important
and basic.
 Thinks that moving between topics without any links between them raises
possiblity
that the discussion will suffer.

~ Chair: Sees no problem with that.  Entirely open to allowing delegations to
express views on topics, and thinks that the order is unimportant.  As
Argentina
says, item 4 is clearly linked to item 10.

What I would like to know is the views of various delegations on these
various
proposals specifically item 10 (Brazilian text and United States text)

~ India: Would like more clarification on how items are determined
controversial or
noncontoversial.  Would like especially to have an early "heads-up" on
where things
stand.  Thinks that it would take no more than 15 minutes to run through
the whole
list.

~ US: In light of new comments, does the chair still want the US to
present its
change on Item 10?  Wants clarification about the Indian delegation's
suggestion -
not familiar with this "initial survey."  Could India explain?

~ Chair: The US should present first.  Then we'll forget the word
"controversial"
and simply go by the choice of the chair.

~ US: Their proposal is premised on recognizing the benefit of IP and WIPO in
development.  It is not just about technical assistance.  It is instead
designed to
build on existing successful work by bringing together all stakeholders.
Proceeds
to outline the two main arms of the proposal: a WIPO Partnership Database
and a WIPO
Partnership Office.

~ Mexico: Thinks that the proposal put forward by Argentina is an "excellent
proposition" as there are many items that are interlinked.  However, Item
4 is more
general than Item 10 - perhaps we should discuss them both now.

On Item 10 bis. [RB: The US's amended Item 10], it is important to think
of costs
for the database and website and office.  Perhaps we should keep our feet
on the
ground.  Who contributes this financing?  How much do we pay?  Where do we
get these
resources?

~ Canada: Wishes to address 10 bis.  With regard to technical cooperation,
it's
important that these be as efficient as possible.  With that in mind,
Canada finds
the US proposal compelling and wishes to pursue it further.

~ Argentina: We've already said that we believe that technical assistance
should be
linked to other elements that we do not believe are found in the US
proposal.  We
think that technical assistance should be mainly based on needs and
requets from
member states.  That's why the GFoD paper suggests real evaluation of
these efforts.

~ Pakistan: Wishes to share their thoughts on US proposal.  We agree that
technical
assistance is an important element of WIPO's work.  This is something
already on its
way with respect to the Secretariat's work.  The US proposal would
strengthen the
technical assistance work which has improved in the last two to three years.

An establishment of the WIPO partnership office and the database is fine.
However,
we find the conspicuous absence of certain ideas in these discussions.
There needs
to be a change in mindset in these discussions of the WIPO DA which would
have
effects upon the US technical assistance program.  We are talking about
having
development in the IP system, but  technical assistance is a but small
part of the
Development Agenda proposal.

~ United Kingdom:  The US proposal is an important contribution to WIPO's
efforts to
provide effective technical assistance.  We called for a proper evaluation
of WIPO's
technical assistance.

~ Chair: I want to thank Argentina for its intervention calling making
linkages
between the different of the action-oriented proposals by Member States.

~ Brazil:  We would like to briefly emphasize the points that have been
made by
previous delegations.

The friends of development (IIM/1/4) mentioned information sharing as
being useful
in the field of technical cooperation.   This was never intended as a
stand-alone
proposal.  Information sharing should be accompanied by principles and
guidelines
for pro-development technical cooperation.

~ Sweden:  We welcome and support the US proposal and align ourselves with
the
United Kingdom.  A key principle of technical cooperation is that it
should be
demand driven.

~ Australia: Garbled [TB: Basically supports the US proposal]

~ Japan: We think the US proposal to establish a database is positive.

~ United States:  Certain private sector interest would be involved with
the donor
agencies.  However, it would be up to the developing countries which
programs to
implement [i.e. "demand driven"].  Due to the structure of the proposal,
much of
this could be done through extra-budgetary resources and the existing
budget of
WIPO.

~ Chair: I would like to ask a member of the GFoD to elaborate on Item 4.

~ Brazil:  The GFoD noted that WIPO plays an important role in the
implementation of
the TRIPS Agreement in developing countries.  The legal and technical
assitance
activities of WIPO should include the implementation of the
pro-development aspects
of the TRIPS Agreement including Articles 7,8, 13, 31, and 40 and the Doha
Declaration on the TRIPS Agreement and Public Health.

These principles and guidelines for development and implementation of
technical
assistance would act as a roadmap (WO/GA/31/11 and IIM/1/4).  The UK IPR
Commission
looked at these questions related to WIPO's technical assistance.  There is
agreement that the principles and guidelines that we have identified in
our document
are correct.  These principles and guidelines are not an exhaustive list.

~ UK: Indicates concern about some proposed guidelines, and again proposes
that the
PCIPD is the ideal forum for discussing these concerns.  This would also
allow for
the discovery of how other committees provide technical assistance.

~ Canada: At the last meeting, several countries commended WIPO's work on
technical
assistance & cooperation.  Canada prefers a demand-driven approach.  Often,
technical assistance is delivered in isolation from other development
work.  We wish
for rational WIPO policy.  Therefore, we think that this should be
discussed in
PCIPD.

~ India: Surprised that the previous two speakers wished to push this
discussion to
the PCIPD.  With respect to the GFoD proposal, it presents the fundamental
question
of whether technical cooperation can actually be used to aid development.
This
question clearly does *not* belong in PCIPD, as it refers to a more
meta-level
consideration that encompasses the role of PCIPD.

As for the US proposal, this is straight down the street of technical
assistance.
"Partnering" with a DC with an industry group is likely to be
uncomfortable if what
the country really needs is less protection in a particular area.

India is shocked, however, that the US and UK would jump to push the GFoD
proposals
into the PCIPD when the US database proposal is so clearly in that realm.

-=-=-=COFFEE BREAK=-=-=-

~ UK: Wishes to explain  PCIPD is a "legally set up body" that is already in
existence.  All members of WIPO can participate, and it has an extremely
broad
mandate.  Their proposal is that this body, properly reinvigorated, is the
ideal
venue for this discussion.  They noted earlier that the US proposal should be
pursued there as well.  They were therefore surprised that India was
surprised.

~ Argentina: We need to put ourselves in the proper context.  The proposal
for a
development agenda for WIPO does not have separate components - it is a
whole.  The
GFoD are not proposing a technical procedure, but are rather trying to get
to a
conceptual framework for this work.  We also explain mechanisms, and those
are
covered in issues 11-13.  With regard to sending these themes to PCIPD, we
also have
a mandate that is clear.  The assemblies can later take our agenda and
make other
decisions on what to do.

Reiterates principles in GFoF proposal from first IIM.

Why would we leave these to another body when our mandate is so clear here?

~ Iran: We need some guidelines and principles in this body before
dropping the
whole thing in PCIPD.

~ Australia: This delegation agrees with the UK on the scope of PCIPD.  If
the
concern is that the PCIPD has not traditionally worked on these issues,
this would
be an opportunity to "mainstream" these issues there.  It could also
encompass the
US proposal.

~ Algeria: Agrees with Argentina, India, Pakistan: we have a mandate.  If
we cut up
the DA, then tomorrow we'll have to put it back together at some point.
The GA
asked us for set of principles.  Technical assitance isn't appropriately
before this
body

~ US: Has concerns about Item 4 on principles.  These stem from some
troubling
premises, for instance GFoD para 59.  His delegation doesn't share these
premises.
For instance, he doesn't think that he's ever heard a delegation say that
IP is an
end in itself.

In light of these issues, US would have an enormous amount of discussion
about those
principles.  This is probably where the UK is coming from when they
suggest putting
this into the PCIPD.  Does believe that we are currently meeting their
mandate to
examine proposals and report to the General Assembly, but that doesn't
mean that we
have to have completed all the work contained in these proposals.

~ Chair: Pakistan next, then we'll spend the last 30 minutes on Item 13.

~ Pakistan: In our view, there is currently not a development orientation
in the
delivery of technical assistance.  Though we've appreciate the assistance
they've
always gotten, there are gaps.  The GFoD proposal addresses these gaps.

Second, would basically like to disagree with punting to PCIPD for two
reasons.
First, the PCIPD is currently structured towards maximizing IP.  Second,
having a
development agenda for the entirety of WIPO has been handed to the IIM.
Passing the
buck is not the way to deal with it.

On technical assistance, note that the GFoD proposal would facilitate
foundational
studies on whether or not it is working.

~ Trinidad & Tobago: Suggests going through each proposal - if not at this
meeting
then the next - and say where there is misunderstanding in the way
proposals are
phrased.  We perhaps we can discuss these proposals substantively.  Then
we can
effectively try to achieve some method of consensus.

~ Mexico:  The delegate from Trinidad & Tobago and I are in agreement.  In
fact, I
was just going to submit this method of proceeding.

We all know that every topic in front of this body is very complex.
Tomorrow, we
will have to submit a report that says we had a general discussion of
these points,
but we were unable to reach consensus on any of them.

It seems to me that we should not lose sight that there is a link between
IP and
technological policy.  This is found in items 2,3, and 4.

~ Nigeria: We are discussing the issue of technical assistance.  We need
to discuss
what constitutes technical assistance.  Would the provision of one or two
computers
be considered technical asssitance?  Would a lecture tour from a developed
country
to a developing country be considered technical assistance.  Should technical
assistance be advanced to further strengthen enforcement measures or
should it be
used to help countries to develop their latent potential.

The US proposal is predicated upon on the assumption that ICT facilities
exist on an
equal footing in all countries.  This is not the case.

There is an initiative put forth by the African Group on the Digital
Solidarity Fund
to bridge the digital divide.  Perhaps the US could help to fund this.

~ Brazil:  We would like to make a procedural remark.  We thought we were
at the
stage where we could discuss substance.  We are a little concerned by
remarks made
by some that the IIM is not the appropriate forum in which to address certain
proposals such as the GFoD principles and guidelines for the development and
implementation of technical assistance.  We have a clear mandate from the
General
Assembly to consider these substantive proposals.  This is the forum
tasked to
discuss these principles and guidelines.  We take notice the constructive
proposal
put forth by Trinidad & Tobago.   We note that the UK has suggested that
PCIPD be
the forum for this discussion.  The GFoD has already responded in IIM/1/4
stating
clearly that they object to this approach.  The IIM has a mandate from the
General
Assembly and we should have substantive discussions on the proposals and
not discuss
whether this is the appropriate forum or not.

~ Colombia: Regarding the action-oriented proposals list: for us, it is
important to
distinguish a process of decisionmaking from the execution of those
decisions.  We
think that the proper body for the former is certainly the IIM, not the
PCIPD.
Perhaps the PCIPD could be given a mandate to implement the decisions that
are made.
 We think it is very important to separate these aspects.

The principles and guidelines in the GFoD document are quite clear.  It is
difficult
to apply technical assistance to implement the Millennium Declaration
Goals vis a
vis IP.

Finally, regarding continuous evaluation, the assembly must make
provisions for
ongoing monitoring, and that activity could fall to the PCIPD.

Don't believe that there needs to be a timeline on these proposals.  It's
hard to
understand how one could come to a conclusion on these issues by the end
of the next
meeting, and instead we could come to the general assembly with a report
that relies
on more work for execution.

~ Argentina:  We want to refer to the statements we have just heard and
specifically
on what the delegate from Colombia just said on a methodology.

That might be useful.  The only way to reach an agreement is this one, and
it's the
only way that we can find consensus.

Would like to refer to the concerns expressed by the US regarding the
principles and
guidlines. It is true that we have different philosphical concerns, but
that's no
reason to condemn them.  In fact, they could be made even more broad &
encompassing.
 We don't understand the actual problem with these guidelines.

~ India: We recognize that we have difficulties on several levels.

We reviewed Para 66 IIM/1/4 and we find that it would be locate to find
anything
that could possibly be objectionable.  We are confused that the US would
single para
66 as a "problem" paragraph.

A second problem we find is that these proposals that claim this should be
taken up
in other committees.  There is a perception that the IIM is a "general
committee".
We thought this would be more akin to a reform process that is taking
place in the
UN.  This would be akin to "disbanding" the UN reform committee which did not
actually take place.  There is a lack of the development dimension in the
work of
this organization.  There is a huge lacuna in this respect over the 30
years of this
organization's history.

We saw the IIM process as a mini-reform process that mirrors the UN reform
process
taking place in New York.

~ United States: Cites the paras where he has concerns.  As for para 66,
that was
one that he cited where they *do* overlap.  There must have been a
misunderstanding.


~ Mexico: When I read paragraph 66, it raises a few thoughts.  Generally,
when WIPO
provides assistance, it has been solicited by the host country.  But when
I read
para 66, I think there is a misunderstanding.  I would like to understand
from the
GFoD what it means to "gurantee that the level of technology matches the
level of
development."  It may interact badly with TRIPs.

[TB: The TRIPS Agreement provided transition periods for developing
countries and
LDCs with respect to the implementation of the Agreement.  Paragraph 7 of
the Doha
Declaration on the TRIPS Agreement states that "least-developed country
Members will
not be obliged, with respect to pharmaceutical products, to implement or
apply
Sections 5 and 7 of Part II of the TRIPS Agreement or to enforce rights
provided for
under these Sections until 1 January 2016, without prejudice to the right of
least-developed country Members to seek other extensions of the transition
periods
as provded for in Article 66.1 of the TRIPS Agreement".]

~ Chair: He's satisfied that we're on to the substantive issues, but
thinks we're
not moving fast enough.  What he would like is for each delegation with a
proposal
or point of view to explain their reasoning & allow us to come together.
He wanted
to avoid this "game of ping pong," where delegations are constantly asking
for the
floor to rebut or clarify even minor points.  Instead, would have
preferred to have
each delegation with a proposal present their views.

~ Colombia: What will the procedure be from today through tomorrow?  Which
proposals
will we cover tomorrow so that we can do homework tonight?