[A2k] TWN INFO: Assemblies went smoothly, tensions over future work remain

[Sangeeta]

TWN Info Service on Intellectual Property Issues
1 October 2008
Third World Network
www.twnside.org.sg <http://www.twnside.org.sg/>

WIPO: Assemblies went smoothly, tensions over future work remain
Published in SUNS #6558 dated 1 October 2008

Geneva, 29 Sep (Sangeeta Shashikant) -- In comparison to the past 4 years,
where WIPO General Assemblies have been rather tumultuous, this year's
Assemblies which started 22 September and ended today have progressed
relatively smoothly, according to some delegates.

However they also pointed out that tensions still remain over the future
work of the various key committees in WIPO. In particular, there is frictio=
n
along North-South lines as to relationship between WIPO's Committee on
Development and IP (CDIP) and other WIPO bodies as well as whether adequate
resources will be made available for the implementation of CDIP's
recommendations.

The CDIP is in charge of the WIPO Development Agenda, which has been
advocated by the developing countries to reform WIPO into a
development-oriented organization.

There is uncertainty about the future work of some key WIPO bodies. The
Copyright Committee (SCCR) is in a state of flux as its future work
programme remains undecided. The topic of the next session of Advisory
Committee on Enforcement (ACE) remains unsettled with divergent opinions
between the developed and developing countries.

The future work programme of the Patents Committee remains uncertain despit=
e
the Committee awakening from a deep slumber and tentatively agreeing on the
next steps forward.

And the Intergovernmental Committee on Genetic Resources, Traditional
Knowledge and Traditional Cultural Expressions (IGC)'s which has been in a
discussion mode for the last 7 years, has not seen any concrete outcomes du=
e
to the reluctance of developed countries to seriously engage on the issues,
resulting in frustration among developing countries.

An African delegate speculated that countries were perhaps unwilling to
"rock the boat" at this year's Assemblies as WIPO has just elected a new
Director General, Mr. Francis Gurry. Many delegations are waiting to see
what kind of changes Gurry will pursue in the next one year and to what
extent developing countries benefit positively from the changes, she added.

Although the Assemblies ran through the outcomes and conclusions reached at
the CDIP, SCP, SCCR, ACE and the IGC with little controversy, interventions
by delegates revealed differences of views, which indicate a year of
difficult decisions ahead.

DEVELOPMENT AGENDA

On the Development Agenda (DA), developing countries made a strong call for
mainstreaming development in all of WIPO's activities and to find a
mechanism for other WIPO bodies to integrate DA recommendations into their
work, as well as for WIPO to allocate adequate resources for its
implementation.

Developed countries on the other hand, are not keen on establishing a
relationship between the CDIP and other WIPO bodies. They are also insisten=
t
that usual WIPO budgetary processes are followed, with the implication that
the Program and Budget Committee (PBC) that meets in December could revisit
substantive issues agreed at the CDIP, as the PBC meets only after the GA,
an unusual practice.

Some disagreement also emerged over the Secretariat's proposal on the
convening of a donor conference. Several developed countries were reluctant
to approve this until there is more clarity over modalities of the
conference and wanted to the decision to be made only when the PBC meets in
December.

Some sources speculate that this reluctance has little to do with budgetary
issues but that in fact the developed countries fear that the donor
conference may lead to a requirement that donors follow the DA
recommendations and that there will be more oversight over how
extra-budgetary resources are spent and the terms and conditions attached t=
o
the resources.

While some debate on these issues took place during the GA, it is
anticipated that the PBC meeting and the next CDIP session will examine
these issues more closely. Some delegates anticipate difficult discussions
ahead.

During the GA plenary sessions, several countries also took the opportunity
to reaffirm the importance of the DA.

Argentina on behalf of the Group of Friends of Development (GFOD) signaled
to the new DG as well as to WIPO's membership of its commitment to see
through the DA implementation, calling it a "high priority" for the GFOD.

The Algerian Ambassador Idriss Jazairy, coordinator of the African Group,
referred to the DA as "the most significant initiative in WIPO" adding that
"we are poised to usher in a new era in the global application of IP in a
just, democratic and balanced way which is the hope and aspiration of a
large section of humanity."

The DA, he said, has raised genuine expectations in the developing countrie=
s
and LDCs and "these expectations should neither be dimmed nor diluted by
protracted procedural methods or disagreements over allocation of resources=
"
as it would be "counterproductive" and "impact negatively on the
organisation".

He also welcomed Secretariat's proposal on a donor conference stressing
however that the conference "should not lead to conditionality, or cherry
picking" e. g. picking only certain recommendations to implement. He also
added that the budgetary surplus should be moved towards implementing DA.

Pakistan on behalf of the Asian Group stressed the need for allocating
resources to implement the DA. It wanted the Assemblies to encourage other
committees to implement the DA. It sought for more details on the terms and
conditions as well as outcomes of the donor conference.

Cuba on behalf of GRULAC said that the best achievement of DA was the chang=
e
of perception of WIPO in and outside WIPO. It added that substantive
committees such as the SCP and SCCR have to respond to the challenges faced
by, and needs of, developing countries.

It said that the DA should be mainstreamed in all WIPO's activities and tha=
t
necessary financial and human resources should be made available. Several
other developing countries such as Nigeria, Brazil, Malaysia, India Egypt,
Thailand, Tunisia also spoke on similar lines.

Brazil said that a cultural change for WIPO was necessary and healthy. It
added that the IP system is about rules as well as exceptions to the rules,
as these guarantee balance. The DA is cross cutting in nature and WIPO need=
s
to offer cooperation that goes beyond technical assistance.

Brazil added that the DA has to contribute to technological innovation. It
requested the new DG to give high priority to the DA, to bring it forward
and make resources available. It said that during the CDIP, there was no
contestation as to the resources and that proper procedure was followed.

India stressed the need to translate DA into "effective and concrete
projects", adding that since resources are finite, this necessitated
imaginative solutions, reorienting priorities, exploring non-budgetary
resources, new models of technical assistants (e. g. using consultants from
the region).

Romania stressed that efficient management of resources was a priority and
that the "parallelism" of activities between WIPO bodies should be avoided.

The donor conference proposal led to some disagreement. Romania (on behalf
of the Central European and Baltic States) could only agree to the first
phase of the donor conference i. e. that consultations be held with Mission=
s
in Geneva. It could not agree to the second phase of the proposal i. e.
follow-up consultations in capitals and with the relevant multilateral dono=
r
institutions.

The US on behalf of Group B (of developed countries), said that any plannin=
g
must ensure consistency with WIPO's budgetary process, thus seemingly not
approving the second phase of the donor conference which involved a cost CH=
F
50 000. [The donor conference itself is costed at CHF 140 000].

The Africa Group rejected this approach and called for the approval of the
convening of a donor conference. Tunisia said that adopting the first phase
but not adopting a follow-up could be seen as rejecting the proposal.

The following decision was then taken: "The General Assembly of WIPO took
note of the information contained in the present document and decided, with
a view to the convening of a donor conference in 2009, to approve the
initiation of consultations in Geneva concerning the programme and other
details of the conference, for the purpose of submitting the budgetary
requirements to the next Program and Budget Committee."

COPYRIGHT

During discussions on copyright issues, a lengthy debate over paragraph 12
(ii) of WIPO's report (WO/GA/36/5) arose as it selectively gave special
treatment to the issue of audiovisual performances by requesting "the
Secretariat to report to the GA on the deliberations of the SCCR on the
protection of audiovisual performances at its Session in September 2009".

Cuba on behalf of GRULAC proposed to add a paragraph in relation to
exceptions and limitations (L&E) to copyright, equivalent to the one that
had been proposed on protection of audiovisual performance.

Cuba stressed the importance of L&E to copyright applicable for educational
purposes, for libraries and in relation to disabled people in particular to
improve the access for the persons visually impaired to protected works. It
also said that the Secretariat's report to the GA should be a factual
document, reflecting the positions of Members.

Egypt added that the SCCR discussions should reflect CDIP's work.

France on behalf of the European Community stressed continuation of work on
the protection of audio-visual performance treaty and protection of
broadcasting and cablecasting treaty. It also emphasized work on resale
rights, collective management, and applicable law, which sources say is
intended to sideline the work on L&E.

The US supported protection of audio visual performances. It also said that
major differences over the protection of broadcasting organizations have to
be resolved before agreeing to a diplomatic conference.

Interestingly it brought back as part of the broadcasting discussions, the
issue of protection of unauthorized transmission over the internet
(webcasting), which had previously been agreed should be dealt with
separately from the protection of broadcasting organisations.

On limitation & exceptions, it stressed on sharing of national experiences,
and called norm-setting "premature", adding that the 3 step test in the
Berne Convention was enough.

Differences over which issue the SCCR should in the future concentrate on
resulted in a lengthy discussion over the decision paragraph, with the EC
preferring a more general decision and GRULAC preferring the decision to
specifically mention each of the topics. The US also sought the removal of
the word "traditional" before the term broadcasting, so that it includes
unauthorized webcasting.

After much discussion, the following paragraph was agreed to: "The General
Assembly is invited to: (I) take note of the current status of the work in
the SCCR; (ii) request the secretariat to report to the General Assembly at
its session in September 2009 on the deliberations of the SCCR on: (a) the
protection of audiovisual performances; (b) the protection of the rights of
broadcasting and cablecasting organisations; ( c) limitations and exception=
s
to copyright and related rights protection; and (d) any other matter
discussed in the SCCR."

The decision paragraph is a small victory for proponents of L & E as it set=
s
the L & E issue on an equal footing with the protection of broadcasting and
audio-visual performances, while downplaying the issues of collective
management rights, resale rights, and applicable law pushed by the EC (in a=
n
attempt to upstage the L & E proposal).

However the future committee of SCCR will face tough decisions over, which
issue it, should prioritize. In addition, it appears that the US is renewin=
g
attempts to incorporate within the scope of the proposed broadcasting treat=
y
issues of webcasting, which has been rejected by many developing countries.

ENFORCEMENT

On matters concerning the ACE, which is a forum for exchanging information,
no topic for the next session has been agreed upon despite consultations
prior to the GA. Discussions are expected to continue following the GA on
the proposals for topics submitted by Group B, Central European and Baltic
States and by GRULAC.

Proposals by the former two regional groupings are more focused on the
rights of the IP holder while the GRULAC proposal is for Recommendation 45
of the Development Agenda on approaching IP enforcement in a balanced manne=
r
and in the context of broader societal interests and development-oriented
concerns.

Cuba on behalf of GRULAC suggested that since the consultations between the
Secretariat and the regional coordinators aiming at reaching an agreement o=
n
the themes for the next meeting have not borne fruits, the Secretariat
organize informal consultations of one day open to interested Members. It
said once there was agreement on the topic, names of speakers for the topic
could be suggested.

Pakistan on behalf of the Asian Group said that "ACE=B9s future work should
take a more balanced and development oriented approach, in accordance with
Article 7 of the TRIPS agreement" and that the "future work should be in
accordance with the Committee=B9s mandate".

Many developing countries made a strong call for WIPO to be the main forum
for discussions on issues of enforcement according to its mandate which
involves exchanging information but excludes norm-setting. This was a
response to attempts by developed countries to set norms on IP enforcement
through different fora such as the Anti-Counterfeiting Treaty (ACTA), the
World Customs Organisation and the World Trade Organisation.

Developed countries such as the EC also called WIPO the best forum for
discussion of enforcement issues but added it had to be "ambitious". On a
similar vein, the Russian Federation wished to broaden the mandate of ACE.
Mexico suggested that WIPO could build on the work already done on ACTA.

Gurry, following his appointment, also raised the issue of the relevance of
WIPO in setting norms on enforcement. He said "reflection" was needed as to
whether WIPO's should be "confined to awareness raising and the training of
custom officials, the police and the judiciary, or should it encompass a
more robust engagement and, if so, alone or in cooperation with other
concerned international agencies?"

These interventions signal the possibility of a strong push in the future t=
o
open up the ACE process to include norm-setting.

The African Group also raised concern that the Secretariat had changed the
title of its report to the GA to "Report on the Work of the Advisory
Committee on Enforcement (ACE) and the Enforcement of Intellectual Property
Rights". It said that traditionally the report has been titled as "Matters
Concerning the Advisory Committee on Enforcement" and insisted that the
Secretariat stick to that title. The Africa Group also sought for the
Conclusions of the Chairman of the 4th ACE session and future Chair's
conclusions to be attached to the reports before the WIPO GA.

GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND CULTURAL EXPRESSIONS

On the work of the committee on the above topic, developing countries
expressed their frustration on the lack of movement in creating an
international binding instrument on the protection of TK and TCE and
expressed the need for speeding up work.

Algeria on behalf of the African Group said the problem of misappropriation
was a transnational problem and thus it required a global response which
includes elements such as disclosure of origin, prior informed consent and
fair and equitable sharing of benefits.

Brazil reiterated the need for the TRIPS Agreement to be amended to include
an obligatory disclosure of origin, asking how could this can be achieved
under Gurry's leadership.

The report before the Committee was agreed to, with an additional line that
comments will be allowed on the committee's future work on genetic
resources.

The secretariat has prepared "gaps analyses" on protection at the national
level for discussion at the next meeting on 13-17 October. Inter-sessional
sessions are also expected to take place following the October meeting.

PATENTS

The GA also took note of the Secretariat's report on the work of the last
SCP (WO/GA/36/10), which includes a Summary by the Chair. The Summary
identified a non-exhaustive list of issues (containing 18 topics) for
further discussion and which is to be used for working towards a work
programme for the SCP.

The Secretariat is to also establish preliminary studies on four issues, i.
e. Dissemination of patent information (inter alia the issue of a database
on search and examination reports); Exceptions from patentable subject
matter and limitations to the rights, inter alia research exemption and
compulsory licenses; Patents and standards; Client-attorney privilege.

It also has to make provision in the revised Program and Budget for 2009 fo=
r
a Conference on public policy issues such as health, the environment,
climate change and food security.

Developing countries stressed that the 4 issues that are to be studied are
not to be prioritised over other issues and welcomed the holding of a
conference. Cuba on behalf of GRULAC reiterated the request made by the SCP
to the Director General to consider the inclusion in the budget of the
revised program for 2009 of a provision for the holding of this conference.

Egypt said there was scope for convergence as to what is examined by CDIP
and the work of SCP and looked forward to discussions on the mechanism for
this convergence.

The US look favorably at the possibility of studies in particular on
dissemination of patent information which includes the issue of a database
on search and examination reports, as it could help with the work load.

NEW CHAIRS ANNOUNCED

Heads of several WIPO bodies were approved on 25 September. The Coordinatio=
n
Committee (executive body of WIPO), will be headed by Alberto Dumont,
Argentina's Ambassador in Geneva, with vice chairs to be Muktar Djumaliev
from Kyrgyztan and Tunisian Mohamed Abderraouf Bdioui from Tunisia.

Djaballah Belkacemi of Algeria will chair the Berne Union Executive
Committee, with Livia Puscaragiu of Romania and Udo Fenchel of Germany as
vice-chairs. The Paris Union Executive Committee will be chaired by Ghana's
Grace Ama Issahaque, with Martha Irma Alarcon Lopez of Colombia and Corlita
Babb-Schaefer of Barbados as vice-chairs. Christophe Guilhou of France will
chair the Lisbon Union Assembly. +