[A2k] Blogging WIPO and the Development Agenda, Second IIM (Day 3)

Thiru Balasubramaniam thiru@cptech.org
Mon Jun 27 09:30:40 2005


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http://www.eff.org/deeplinks/archives/003744.php


    WIPO: Trying to Bury the Development Agenda


    June 27, 2005

The second meeting on the WIPO Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/> is now finished, and the
opponents of reform have made their strategy clear: tie-up the meeting
in procedural posturing to forestall substantive debate on the real
issues. Even as the Friends of Development
<http://www.wipo.org/edocs/mdocs/mdocs/en/iim_1/iim_1_4.pdf> tried to
discuss unassailable reforms like an ethics code for WIPO, the
proceedings kept getting sidetracked by countries that wanted to cut off
debate.

[We've got deeper analysis and the whole day's notes after the jump.]

The United Kingdom - along with the U.S., Canada, Australia, Japan,
Switzerland, and other wealthy OECD
<http://www.oecd.org/home/0,2987,en_2649_201185_1_1_1_1_1,00.html>
countries known at WIPO as "Group B" =96 responded to each attempt to
debate substantive issues by stating that discussion should take place
in another committee: the Permanent Committee for Cooperation for
Development Related to Intellectual Property (PCIPD). If this sounds
familiar, it=92s because they made the same point at the first Development
Agenda meeting in April. The UK recommended this in its April proposal,
and just prior to this meeting, submitted a new version of its proposal
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=3D45790> for the
=93reinvigoration=94 of the moribund PCIPD. The US also made the same pitch
in its opening statement on day 1 of the first meeting back on April 11
<http://www.eff.org/deeplinks/archives/003509.php>. The PCIPD includes
=93Development=94 in its name, but that=92s not the whole story. As the
Brazilian delegate noted, moving discussion to the PCIPD would run the
risk of burying the Development Agenda. It =93would effectively be a
garbage can for development concerns=94 because PCIPD is a =93less
hierarchically significant committee=94 than the current meeting.

The PCIPD reports to the WIPO Conference, a body that the WIPO General
Assembly voted to disband in 2002. Before April, it had not met for two
years. It=92s previously been an advisory-only body, focused on technical
assistance =96 only one part of the FoD reform proposals. Even if the
PCIPD could be redesigned in the future to handle the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/> and given the power to
implement its recommendations, it would mean more unnecessary procedural
hurdles before reforms could even be discussed. This strategy is
particularly odious because it is being raised in a special,
plenary-level gathering that was convened and specifically tasked with
considering proposals for WIPO reform, and reporting its recommendations
to the full General Assembly in September 2005. The mandate of the IIM
is so clear that, after six days of meeting with very little substantive
debate, it's hard not to question the motivations behind the UK and
Group B proposal. Why wouldn=92t any observer regard this as a cynical
ploy to stifle change?

In response to the perception that their proposal was "passing the
buck," the UK delegation said, "It's more like passing the baton in a
relay race. It doesn't matter who has the baton as long as we are moving
forward." But races are run on a track, where progress can be measured
and the finish line is obvious. The opponents of the Development Agenda
seem intent on running WIPO reform into the ground.

We'll be at the next and final IIM in July with more updates and analysis.

Ren Bucholz

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

[JUMP]

Blogging WIPO and the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/>, Round 2
The Second IIM, June 20-22: Day 3

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.]

-=3D-=3D-=3D-=3D-
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-=3D-=3D-=3D-=3D-

10:45 A.M.

~ Chair: Opening remarks imploring delegates to proceed efficiently, to
speak only once if possible, and to respond to another country only if
totally necessary. Last half hour before lunch will be dedicated to IGOs
and NGOs.

~ Bahrain: Yesterday, we asked for more time to make our proposal more
interactive. We'll hold off on discussing it until the proper time.

~ Chair: We'll first talk about 13 - indicators and benchmarks for the
evaluation of WIPO technical assistance - then 11 and 15

~ Argentina: 13 should be seen as parts of 11 and 12, since all three
comprise a section. Proceeds to present on items 11-13, summarizing each.

~ Switzerland: On 10 & 4, and also on 11-13, the guidelines for setting
up such endeavors could be discussed in the PCIPD.

~ Canada: This response is to item 13. Agrees in principle with FoD.
That being said, who would be responsible for this work? The Secretariat?

~ US: Pursuant to yesterday's comments, they have concerns with items
11-13, including paragraphs 71-77 of IIM/1/4 (the original FoD
proposal). Feel that it is premature until we have a discussion about
underlying motivations. Like Canada, we wonder who would carry out the
work. How does it interact with UNCTAD or the World Bank? Also, as for
benchmarks, these are usually needed to mark progress along a certain
path. However, as we have concerns on paragraph 59, we need more
discussion to figure out what that path may be. As for a code of ethics
or a secondary office, we can't support this right now because there's
no mention of member state involvement or a list of duties, and we need
clarification. Code of ethics is interesting, but not sure how it would
be implemented. In its current state, US has a lot of concerns with this
proposal, especially given the underlying premises in the FoD proposal.
Supports Swiss statement & encourages this work to live in the PCIPD.

~ India: We've heard references to misgivings about paragraph 59, but we
find it difficult to recognize anything that would be objectionable. For
instance, some balk at the statement of concern about IP being seen as
an end in itself, claiming that nobody here feels that way. Yet several
delegations have spoken at length about the need for an "IP culture." It
is India's understanding that IP should further other social goals. So
if there is a difficulty with statements like this, we don't understand.

~ Sweden: We are generally positive on item 13, though we agree that
there is some elaboration that needs to be undertaken.

~ UK: Also positive about these proposals and are interested in
exploring them in more detail. Whatever we do, we should not undermine
WIPO's current ability to undertake capacity building and technical
assistance. Also room to learn from other UN bodies like IMF and UNCTAD.

~ Argentina: We share the concern about this being a member-driven
project, and we appreciate that other members are willing to explore
this with us. In fact, in para 28 IIM/1/4, there is a proposal to
undertake member-accountable & member-driven actors like WERO.
Membership is an open question - our main concern is that it be as
independent as possible.

~ Chile: Expresses support for new consensus on WIPO guidelines, and in
the need for new benchmarks & indicators to evaluate those guidelines.

~ France: Supports benchmarks and indicators. This merits further
in-depth discussion on how this can be made more concrete.

~ Chair: Proposes items 7, 8, 9 for discussion.

~ Canada: Wants clarification on order of items.

~ Chair: Apologizes, thinks that he got a bit lost. Argentina's mention
of other items threw him off. We'll continue talking about 11 and 12
now, then move on.

~ Argentina: Clarification - when I spoke, I talked about all 3. Some
delegations only spoke about a subset.

~ Chair: That's right - some talked about setting up a new body, others
about benchmarks. I think this is a central issue, and I'm glad that
debate is not over. After speaking of Items 11/12/13, we'll cover 15.
Before that, what has Bahrain proposed? No discussion? Okay - then
here's Brazil on Items 7/8/9.

~ Brazil: There is concern that rapidly expanding international IP
regimes are placing constraints on developing countries to use IP to
suit national needs. There is also concern about the burden of
implementation. We think that development goals should be central to
WIPO's norm setting. Yet it seems that these have been crafted with very
little attention to their costs and benefits to developing countries. It
seems that, to date, IP has been viewed solely as a tool to increase
creative output, without attention to Least Developed Countries=92 needs.
Until now, norm-setting in WIPO has been focused only on arranging
international agreements that are designed to strengthen IP.

In the last GA there seemed to be broad agreement among Member States to
mainstream the development dimension into WIPO's activities. We want to
integrate the development dimension into WIPO's norm setting activities.

Item 7 in our document refers to principles and guidelines for
norm-setting. In effect it has been difficult to address development
concerns into WIPO's work programme, as highlighted by the African Group
with respect to norm setting.

1) Norm-setting should be member driven and transparent - One would
expect Member States and only Member States to make decisions on
norm-setting activities.

2) There should be a comprehensive review of its effect on sustainable
development.

3) There should be recognition of different levels of economic and
social levels of development. We also need to view citizens as users of
the IP system.

4) Finally, want WIPO's work to be commensurate with other UN mechanisms
like the Millennium Declaration=92s Goals on full implementation of
Convention on Biological Diversity.

Mentions WERO. Also suggest the holding of public hearings prior to any
norm-setting activities.

~ Chair: Thanks Brazil for exhaustive presentation.

-=3D-=3D-=3DCOFFEE BREAK=3D-=3D-=3D-

~ India:

~ US: Finds the inclusion of pre-ordained language in treaties
inappropriate. Their understanding is that negotiations determine the
language in a given treaty, and that any country is free to offer
language in a case-by-case basis.

[RB: This is somewhat ironic, given that both the USTR and the EU have
=93model=94 IP text that they seek to incorporate in their bilateral and
multilateral free trade agreements.]

~ OEB (European Patent Office): 10 years after TRIPS, we have yet to see
Least Developed Countries or Developing Countries that have systems that
are sufficiently advanced. OEB is directly engaged in technical
assistance, so they are not criticizing the work of others. It's just
that IP offices may not always be the ideal targets for using IP for
development, so we must look wider.

On the future of Technical Assistance, they feel that the UK's proposals
are very positive [RB: Not their proposal to the IIM, but apparently a
separate exchange. No more info provided.]

~ IFRO:

~ International Confederation of Songwriters, Authors & Composers &
BEAM: We work in the developing world, and the criticisms that they have
heard about training in the developing world are bizarre. By partnering
with WIPO, they go around the developing world, building partnerships
and providing education around the importance of copyright for artists
and society. WIPO funds them, provides them with experts, and adds an
institutional imprimatur. They have provided real benefits to real
people. Urges not to throw baby out with bathwater.

[RB: We missed the following groups as we were preparing our own
statements. Updates or summaries of what was said are welcome, and can
be sent to Ren <mailto:ren@eff.org>.]

~ IFLA:
~ TWN:
~ International Chamber of Commerce:

~ EFF: Full statement available here <http://www.eff.org/IP/WIPO/>.

-=3D-=3D-=3DLUNCH=3D-=3D-=3D-

[RB: We missed the following groups as we were preparing our own
statements. Updates or summaries of what was said are welcome, and can
be sent to Ren <mailto:ren@eff.org>.]

~ International Federation of Actors:
~ World Blind Union: Absent
~ EDRI:
~ Consumers International:
~ EIfL:

~ Civil Society Coalition: Supports FoD. First, we think shifting this
discussion to the PCIPD is improper. It would send the message that WIPO
members states are only interested in tucking these issues away with the
intent that nothing practical should ever emerge.

Many developed countries pay lip service to the needs of developing
countries, but their proposals here indicate otherwise.

90% of WIPO funding comes not from member states but from the business
sector. Therefore, proposals to enhance impartiality in WIPO are
especially important.

~ CIEL: Supports inclusion of sustainable development in all WIPO
proceedings. Emphasises impact assessments.

~ IPI: Mentions that he is also a representative of civil society. Many
of the civil society groups that have spoken so far give the impression
that theirs is the entirety of civil society. There is no single civil
society perspective. Mentions that among economists, IP-skepticism is a
minority opinion. Wants to reinvigorate the PCIPD.

~ Japan: Comments on change to Item 8. Believes that it will be
difficult to evaluate norm setting, but that we should suspend
discussion until such an assessment can be completed.

~ Argentina: We would like to look at the organization of our work. You
had mentioned earlier that we would have time to consider items 1,5, and 6.

~ South Africa: There are mixed feelings in this house about support for
the Development Agenda <http://www.eff.org/IP/WIPO/dev_agenda/>. It is
inevitable that in reform, to some it brings fear and to some it brings
hope. South Africa's experience with reform is positive.

We have undertaken a radical reform process. With respect to norm
setting, norm-setting should recognize differences between
least-developed countries and developing countries. There should be
provisions to set protection levels commensurate with the level of a
country's development. There should be provisions to stop
anticompetitive behavior.

~ UK: On Items 7-9, they fully agree that norm setting should be member
driven. However, like previous speakers, they have concerns about the
need for explicit guidelines because every country has the ability to
make proposals. More discussion is necessary on impact assessments, as
they are practically difficult to deploy.

~ Iran: Our position has been clearly articulated in IIM/1/4.

~ China: Concerning points 7, 8, and 9-in principle we support these
proposals.

In order to be brief and specific, we hope that WIPO will consider norm
setting, one of the most important missions of this organization.

Even if developing countries can reach the goals of TRIPS, it is hard
for them to reach the higher standards called for in bilaterals and
regional Free trade agreements.

In norm-setting we should take into account development concerns. In the
Patent Cooperation Treaty reform we would like to work in consensus to
take care of users. The definition of users should not be restricted to
right-holders.

~ Canada: The modification of legal standards can have profound
implications. We have examined the proposals, but Canada remains to be
convinced of any need for new guidelines and principles for norm-setting.

With regard to impact assessments, we also have such things at the
national level, and we share the UK's concerns about their exportability.

With respect to public hearings, we believe this is a national
prerogative and not for us to mandate.

We'd be very interested in responses to some of these concerns.

~ Chair: We have finished discussions of 7,8, and 9 so I would like you
to address the Chair's Summary.

~ Argentina: We'd like to talk about the timeframe of the meeting. We
should continue discussion of the proposals before proceeding to the
summary. The substantive discussion has been on the backburner for the
whole three days, and so we wonder if it's necessary to spend time on
the summary of the chair.

We wish we had more time to study the Chair's summary but we don't.
Let's continue the discussion without spending two hours on this summary.

~ India: We share Argentina's sentiments. We are not in need of a
summary, especially as we're planning to simply pick up at the next session=
.

~ Chair: We are in your hands.

~ Chile: We support the proposal of India and Argentina.

~ United States: It's not clear to me what is being proposed. Are we to
understand that we will not have a Chair's summary as proposed by
Argentina and supported by India and Chile?

~ Chair: Given that we have already adopted the agenda, which includes
the summary, I think we should have it. We'll just discuss it at the end
of the day. I like this idea.

~ Italy: This seems reasonable considering the text of the Chair's
summary seems fair and accurate.

~ Morocco: We're wasting time. Argentina's proposal is wise, let's get
on with the discussion.

~ Chair: I therefore propose that since we have moved forward in the
discussions, why don't we discuss item 14. Could the UK please present
this item?

~ UK: The UK has had an opportunity to present its proposal, and that it
is clearly set out in documents. Won't go into detail.

The delegate has been working for UK government for 15 years. Since that
time, the UK government has had a change of mindset with regard to
international development. A then-moribund office called DFID was
reinvigorated. It acted as an agent of change from the inside. Such was
the change in mindset, that the UK Department of Trade and Industry was
able to actively support the formation of the UK CIPR.

Some have argued that the UK proposal is like passing the buck. "We
think it's more like passing the baton in a relay race. It doesn't
matter who has the baton as long as we are moving forward."

Encourage others to weigh in, especially developing and least-developed
countries.

~ Argentina: As we have said, all of the themes of the agenda being
brought to the PCIPD does not seem like a good idea. That committee's
theme is technical assistance. Also, would like to ask a question: the
UK wants WIPO to turn this over to PCIPD, and it also seems that we are
supposed to hand results back to the general assembly - why the emphasis
on switching, when this itself seems to be beyond our own power?

~ Canada: PCIPD is the best venue, though we would support a review of
that mandate to make sure that it is broad enough.

~ Romania: Wants to recall statement of Central and Eastern European,
where we expressed support for discussion of this mandate in PCIPD. It
is true that PCIPD already has a mandate, and it is our feeling that
revising that agenda is the best use of our resources. Finally, Romania
is fully aware of the importance of development, including Romania and
IP. Yet, WIPO is not an agency totally devoted to development.
Consequently, we don't think that there is a need to turn this into a
solely development-oriented organization. Many of the proposals in the
FoD proposal are beyond the scope here. Reform of the organization is a
totally different topic.

~ Algeria: If we accept the proposal for a reinvigorated PCIPD, we must
recall the mandate that the IIM is supposed to handle this. We should
not fragment this into smaller parts.

~ Brazil: As we already mentioned in the first IIM, where we observed
the basic thrusts of the original UK proposal, the UK proposal is a good
effort in its diagnostic aspect, but a poor concept with respect to the
solution. The solutions were not commensurate with the challenge we face.

The DA is not anti-IP as asserted by certain pro-IP NGOs (TB: Referring
to IFPMA's intervention).

Development concerns should be factored and mainstreamed into the work
of this organization, which is a UN body. By consigning it to the PCIPD,
you run the risk of burying it. A rejunevated PCIPD would effectively be
a garbage can for development concerns. This should not be dealt with
such a fashion. The IIM is the appropriate body to discuss the DA as its
status is hierarchically more significant than the PCIPD.

~ Italy: We should reinvogorate the PCIPD and we could expand its scope.

~ Switzerland: The mandate of the PCIPD is broad enough to consider DA
proposals. As the UK said, we could expand the scope of the PCIPD if
needed.

~ Australian: Plugs the PCIPD

~ Russian Federation: As a general comment on Item 14, we would be in
favor of reinvigorating PCIPD

~ Iran: The IIM's mandate makes clear that its role is to *examine* the
proposals put forth. We believe that the IIM is not necessarily the
place to discuss implementation. It therefore makes sense to
differentiate these issues, and reinvigorating the PCIPD is premature.

~ US: There seems to be contradiction among some members of WIPO. They
articulate strong desire for reform, but oppose reform of the PCIPD.

Feels that WIPO does indeed include the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/> in all of its work.

Does not feel that the UK proposal is an attempt to put the DA in a
"garbage bin" or technical assistance-only body.

~ India: Let me thank the UK for the proposal. We appreciated their
nuanced understanding of the issues raised by the Development Agenda. We
do not agree that these DA issues should be consigned to the PCIPD.

We are surprised to see one committee singled out for attention,
especially one that is singularly lacking in teeth

We are are surprised to hear that all of WIPO's work is pro-development.
Why is one committee favored over the others (such as Standing
Committees on Patents, , Trademark etc) when all areas are affected by
the development dimension.

Could we then send this to the Standing Committee on Patents, expanding
its mandate? Or the Standing Committee on Copyright and Related Rights?
Or another body? Certainly not - the work will have to be addressed in
all of the relevant committees. The PCIPD, other than dealing with
technical assistance, is for example singularly inept at norm setting.

Instead, we should be coming up with consensus recommendations to the
General Assembly, so that *they* can delegate work appropriately to the
relevant committees.

~ Japan: IP and development is a complex issue. WIPO should deal with
this in an efficient and transparent manner.

~ France: We like the annexes of the UK document which will help us
explore these issues in greater depth.

~ Colombia: Similar to what was said yesterday, the UK proposal is
welcome, but the content & scope of the issues we are studying goes
beyond the mandate that the PCIPD has to deal with these issues. PCIPD
can carry out an important function, but there are decisions that may be
adopted by the GA that may be out of scope for PCIPD.

We should be moving towards a set of recommendations that can be given
to the General Assembly and could then be delegated to each committee.

~ UK: Responding to Argentina. We acknowledged from the outset that
there may be legal issues to work out. From studying PCIPD, we note that
there are no limits to its mandate. It also stems from the WIPO
conference. The General Assembly is composed of WIPO Member States who
are members of at least one WIPO treaty. [Ed note: General Assembly
members must be a member of one of the pre-existing =93Unions=94, such as a
party to the Berne Convention.]

The WIPO Conference, on the other hand, is composed of WIPO convention
signatories and countries that are not parties to a treaty. This is the
kind of cross-cutting issues included in the development.

It is my understanding that the WIPO Conference is scheduled to
disperse, and the assembly would then take on the work of the
committees. This is not likely to happen in the near future. We want to
explore ways for the PCIPD to interact more with the GA & other committees.

~ Chile: We would like to thank the UK for its proposals. We especially
would like to lend support to the proposals to carry out assessments for
norm-setting and an open code of conduct.

The PCIPD can play a role in the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/>, but is not necessarily
competent to deal with all the issues raised by the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/>. Some of this work should be
dealt with in other relevant committees and also the General Assembly.

~ Chair: I would like to see if we can now deal with the Chair's Summary
since we only have until 6:15.

~ Italy (Group B): We agree that this text is fair and balanced and in
principle we accept the text.

~ India: We have an hour yet to go. Yet we have 15 items to deal with.
Could we not deal with one or two more items, such as a proposal for the
consideration of measures to ensure wider participation of civil society?

~ Chair: Let's hear if Group B can adopt this summary. If so, and it is
noncontroversial, then we can proceed. I want to make sure that we can
discuss this in case it requires debate.

~ Argentina: We don't think the wording of para 6 of the Chair's Summary
is perfect. Bahrain's proposals were presented not discussed. In fact
two new proposals were presented, but they were not really discussed.

~ Brazil: This document is a good basis. We would like to suggest minor
amendments. We would like to add an additional factual paragraph between
6 and 7 that includes document numbers discussed.

In regard to para 7, we would suggest adding after "proposals" in the
first line:

"derived from written submissions by Member States".

Delete the Member States at the end of statement. Delete item 10 from
para 7 because 10 was dismembered into 10 and 10bis.

~ Colombia: Had the same concern as Argentina with regard to paragraph
6. Perhaps something besides "discussed." Also suggest adding a deadline
for proposals so that we can have time to react.

~ US: One technical change and a question. On relationship of 10 and 10
bis, we agree with statement from Brazil to amend. In addition, however,
we would like 10 bis to be made into 11, then renumber the remaining
items in order to avoid confusion. Also, would like to get the exact
language from Argentina on para 6.

~ India: Reads proposed language change.

~ Argentina: Adjust language slightly by removing "discuss."

~ US: More language clarifications.

~ Mexico: Wants to look at annex of summary. With regard to the content
of the Mexican summary, we think it should be moved from item 15 to 19,
20, and 21 because it has much to do with Bahrain.

~ Chair: If you do that, then Mexico is no longer listed as a sponsor.
Okay? Okay.

~ Argentina: We also think that we should add item 14, since that's the
last item we discussed.

~ Chair: I get the impression that we don't have any objections to these
changes, so I submit that we should give time to the Secretariat and
continue discussion.

~ Bolivia: [Garbled]

~ China: There seems to be a translation mistake.

~ Chair: We will now deal with items 1, 5 and 6 from our list. I would
ask the FoD to present these times.

~ Brazil: In the spirit of inclusion we would suggest that we could give
Bahrain the floor to present one of their proposals.

~ Chair: Bahrain is not present and they indicated to me that they would
rather discuss this at the 3rd IIM.

~ Argentina: We would prefer if we could discuss 1, 5, and 6 at the
third session of the IIM. Could we have a general exchange on Bahrain
proposals?

~ Chair: Not sure that it's wise to, at this point in time, discuss the
Bahrain proposal. They've been leading the discussion, and have stated
that they'd like to discuss it at the next meeting.

~ Colombia: A preliminary discussion could take place with the
cosponsors, but we would reserve the right to comment later.

~ Argentina: If you would allow us to make some preliminary comments. We
got this last Friday, and our capitols have been reviewing it since
Monday. We'd like to present preliminary comments.

What we see in the proposal is that it goes over aspects that were
already covered in the biennial meeting last month. We don't fully
comprehend certain budgetary aspects of WIPO's technical cooperation
activities. We don't know where the money is going.

~ US: Unclear about where we are.

~ Bahrain: Please give us more time to respond to items 16-24.

~ Brazil: There are linkages between Bahrain's proposals and discussions
at the budgetary and programme committee.

~ Chair: We have the element of suspense with respect to Bahrain's
proposals.

~ India: Does Bahrain believe those earmarkings adequate or excessive?

~ Chair: We're out of time, closing remarks.