[A2k] FromGeneva: WIPO Development Agenda committee deliberations on norm-setting, open source and creative commons

[Thiru Balasubramaniam]

http://www.keionline.org/index.php?option=3Dcom_jd-wp&Itemid=3D39&p=3D134#m=
ore-134

WIPO Development Agenda committee deliberations on norm-setting, open
source and creative commons
July 14th, 2008 by Thiru Balasubramaniam

The WIPO Committee on Development and Intellectual Property (CDIP) had
rich discussions on Thursday afternoon (July 10, 2008) on norm-
setting, open source and creative commons as they related to
recommendations 22 and 23 of the Development Agenda.

Recommendation 22 states:

     WIPO=92s norm-setting activities should be supportive of the
development goals agreed within the UN system, including those
contained in the Millennium Declaration.

     The WIPO Secretariat, without prejudice to the outcome of Member
States considerations, should address in its working documents for
norm-setting activities, as appropriate and as directed by Member
States, issues such as: a) safeguarding national implementation of
intellectual property rules b) links between IP and competition c) IP-
related transfer of technology d) potential flexibilities, exceptions
and limitations for Member States and e) the possibility of additional
special provisions for developing countries and LDCs.

Brazil viewed this recommendation as the foundation of the Development
Agenda.

The WIPO secretariat proposed the following language as proposed
implementation of recommendation 22, in the eyes of some demandeurs,
the cornerstone undergirding the Development Agenda:

     WIPO=92s norm-setting activities should be supportive of the
development goals agreed within the UN system, including those
contained in the Millennium Declaration.

     The WIPO Secretariat, without prejudice to the outcome of Member
States considerations, should address in its working documents for
norm-setting activities, as appropriate and as directed by Member
States, issues such as: a) safeguarding national implementation of
intellectual property rules b) links between IP and competition c) IP-
related transfer of technology d) potential flexibilities, exceptions
and limitations for Member States and e) the possibility of additional
special provisions for developing countries and LDCs.

Before proceeding to describe how the deliberations unfolded, it is
perhaps important to reflect upon one thing that left an indelible
impression upon your blogger. Typically in the norm-setting standing
committees such as the copyright committee or the patent committee,
one only witnesses representatives from one or two WIPO technical
departments with the relevant competence physically present on the
dais. During the second session of the CDIP, what was striking was in
addition to seeing the Secretariat staff from the Office of Strategic
Use of Intellectual Property for Development (the office directly
dealing with the implementation of the Development Agenda) present at
the dais, representatives from the copyright, patent, trademark and
WIPO Academy actively participated in the meeting informing Member
States how their respective divisions were implementing or were in the
process of implementing the provisions of the WIPO Development Agenda.

Argentina, on behalf of the Friends of Development, asserted that
recommendations 15 (norm-setting), 16 (public domain), 19 (Access to
Knowledge) and 19 (norm-setting) were inextricably bound to
recommendation 22 and requested the Secretariat to provide Member
States information at each CDIP meeting on how these recommendations
were being implemented and requested that a letter be transmitted from
the CDIP to the Chairs of WIPO=92s other committees containing
recommendation 22 and annexed to the Rules of Procedures in the
respective Committees.

The United States responded by stating

     [t]his year as the CDIP is finding its voice and this year when
we operate under the mandate under the General Assembly to coordinate
work with other committee and bearing mind that had extensive of this
committee relationship with other committee in session one of the
CDIP, we find it troublesome that this committee intrude itself in the
rules of procedure of other committees. At this point in our
discussion, we find this proposal unacceptable

South Africa stated that it is up to Member States to propose whatever
they want in multilateral negotiations.

Brazil reiterated that

     [t]his is one of the most important, if not the most important
recommendation in the Development. This aims to bring the IP system
back into the mainstream of the UN. Development is a cross-cutting
issue. Development cuts across the whole UN system. The CDIP should
not monopolize development. Brazil noted that one way to mainstream
the development dimension in WIPO was to adhere to the principles
consecrated in recommendation 22 as they had a direct interface with
development.

Japan echoed the United States and noted that she could not support
the Friend=92s proposal; in Japan=92s view, the CDIP had not remit to
dictate rules of procedure to other WIPO committees.

Tunisia asserted that the CDIP was in the =93process of implementation
not of review and revision of recommendations.

Tunisia noted that the

     45 recommendations constitute a balance that is delicately found
and reached similar to a construction. All blocks are mutually
sustaining. If we remove, or attach one block, the whole construction
may fall down.

Tunisia noted that the mainstreaming of the development dimension is
matter that needs systemic involvement of all WIPO committees and
working groups; however, these organs may not be aware of the CDIP
recommendations and the role they should play to ensure their
implementation. Tunisia proposed that a reminder from the General
Assembly to the WIPO committees to further integrate the Development
Agenda could be useful.

China acknowledged its support of the views espoused by the African
Group and Brazil by highlighting the fact that development is a major
challenge developing countries face stated that =93we must speed up our
efforts to meet our Millennium Development Goals=94 by 2015.

Chile reiterated its support of the Friends of Development and China
on norm-setting. Chile stated that =93there should be consistency in
work done by committees as the Development Agenda is cross-cutting in
nature=94. Chile shared the sentiments of Tunisia noting that the
recommendations should filter through to the relevant committees.

The contentious debates over implementation of recommendation 22 were
dealt by Para 10 of the Summary by the Chair which states,

     The Committee noted that there was a need to discuss the
necessary mechanisms for its coordination with other relevant WIPO
bodies in implementing the adopted recommendations, and also the
modalities for monitoring, assessing and reporting on the
implementation of recommendations. The Committee therefore decided to
have a discussion on these issues at the third session of the CDIP.

Recommendation 23 of the WIPO Development Agenda calls upon WIPO

     [t]o consider how to better promote pro-competitive IP licensing
practices, particularly with a view to fostering creativity,
innovation and the transfer and dissemination of technology to
interested countries, in particular developing countries and LDCs.

For its proposed implementation of recommendation 23, the
International Bureau proposed the following activities:

     WIPO will intensify its work on these issues, as and when
requested by Member States. For instance, subject to availability of
resources, a global meeting on emerging licensing issues and copyright
can be organized in Geneva in 2008. In an effort to provide guidance
and information on existing licensing practices for copyrighted works,
WIPO has published a Licensing Guide on Copyright and Related Rights
authored by various international experts. This publication provides a
practical overview of commercial licensing of copyright and related
rights in a global marketplace, for works such as literary, musical,
graphic and pictorial works, motion pictures, multimedia entertainment
and education products and computer software.

     It is also proposed to continue with awareness-raising activities
concerning new approaches to copyright licensing, for example Creative
Commons and open-source software, through which subject matter
protected by copyright may be freely, or with few restrictions,
disseminated for various purposes. In 2007, WIPO initiated a series of
regional meeting on trends, issues and prospects regarding IP and
software, that will continue through 2008.

     In addition, it is proposed to commission a series of studies on
IP and competition issues (please also see comments for proposal 22)
and to organize an international conference, in Geneva, on the
interface between IP and competition law and policy.

Mr. Richard Owens from the WIPO Secretariat noted that WIPO to convene
a global meeting on emerging copyright issues to build upon the
licensing guide survey. Mr. Owens mentioned open source software and
creative commons as examples of innovative, collaborative copyright
based mechanisms that allowed for wider use of works. He reaffirmed
that these mechanisms were not about renouncing copyright, but rather
using the copyright system to facilitating access. The awareness
raising activities were required to see =93how these licenses could be
better understood and identity where problem areas existed=94 since
these mechanisms were =93new and not perfect=94.

The delegate of Brazil (Cristiano Berbert) asserted that within the
halls of WIPO, there was a general misconception that free and open
source software and creative commons were outside the boundaries of
the IP system. Brazil supported the role that free and open source
software had in bridging the digital divide. Brazil specifically
requested Mr. Owens=92 opinion on the subject.

Mr. Owens (WIPO Secretariat) responded by stating that rights were
involved in part of creative commons, specifically rights enjoined in
the Berne Convention, derivative works, rights of reproduction, and
rights of translation. Sometimes questions were raised because
initially, some of the uses were non-commercial and not intended for
remuneration; now as some of the licenses =93matured=94, they moved into
commercial mode. He noted that these hybrid, multi-functional uses of
the copyright system demonstrated that creators could make choices
that were not exclusive; Mr. Owens concluded by stating =93this is not
my opinion, this is just a fact=94.

Brazil commended the Secretariat for its excellent work on this matter
and thanked the Secretariat for clearly stating that alternative
licensing schemes based on the copyright system could be used as a
model for authors and creators.


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Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International (KEI)
thiru@keionline.org


Tel: +41 22 791 6727
Mobile: +41 76 508 0997