[Ecommerce] Bridges Weekly: WIPO GENERAL ASSEMBLY FINDS WAY FORWARD ON BROADCAST TREATY, DEVELOPMENT AGENDA

[Thiru Balasubramaniam]

http://www.ictsd.org/weekly/06-10-04/story1.htm

Bridges Weekly Main Page
Volume 10
Number 32
4 October 2006

*WIPO GENERAL ASSEMBLY FINDS WAY FORWARD ON BROADCAST TREATY,
DEVELOPMENT AGENDA*

World Intellectual Property Organization (WIPO) members managed to agree
on how to address a series of divisive issues during a recent meeting of
the institution's senior decision-making body.

WIPO's annual General Assembly, which ran from 25 September to 3
October, established terms for the negotiation of a potential treaty on
broadcasters' rights, and decided on how to proceed with work on a
series of proposals calling for a 'development agenda' to be integrated
into every aspect of the institution's functioning. It also agreed to
postpone talks on another proposed treaty -- this one on the
harmonisation of countries' national patent systems. Work on the
protection of traditional knowledge and genetic resources is set to
continue as before.

The assembly elected Ambassador Enrique Manalo (Philippines) as its chair.

*Focus of broadcast treaty limited to signal theft*

In a rare instance of cooperation, the US and developing countries such
as Chile and India worked together to broker a deal to limit the scope
of the proposed broadcast treaty to combating signal theft, instead of
the more expansive rights that broadcasters had originally been seeking.
The treaty will be based on a 'signal-based approach' that targets the
unauthorised interception and redistribution of broadcast signals.

On the basis of this narrower mandate, WIPO member states decided to
convene a 'diplomatic conference' from 19 November-7 December 2007 to
finalise and adopt a new international treaty to protect broadcasters
and cablecasters -- provided they manage to clarify outstanding issues
at two meetings in the interim, scheduled for January and June. If,
during these two meetings, governments cannot reach an agreement on what
a 'signal-based approach' would entail, the 2007 General Assembly will
have to decide what to do. Discussions on updating broadcasters' rights
started in 1997.

In mid-September, the chair of the Standing Committee on Copyrights
(SCCR), the WIPO committee responsible for the broadcast treaty, decided
that there was enough consensus on the draft agreement for the General
Assembly to call a diplomatic conference next July (see BRIDGES Weekly
<http://www.ictsd.org/weekly/06-09-20/story2.htm>, 20 September 2006).
This drew fire from several developing countries and the US, as well as
several civil society groups, which argued that move was premature in
light of persistent divisions on the draft treaty text.

As it stood, the draft text would have given broadcasting and
cablecasting organisations exclusive rights over anything they transmit
-- equivalent to a new intellectual property right. Critics warned that
such rights over recording and retransmission could substantially raise
the costs of using broadcasted material for personal or educational
purposes, inhibit creativity, and restrict the entry of information into
the public domain. They argued that this 'rights-based approach' went
well beyond what was necessary to simply prohibit the theft of signals,
which has cost broadcasters and cablecasters advertising and sales revenues.

Once the General Assembly started, the US and the developing countries
reiterated their objections to holding a diplomatic conference on the
controversial draft broadcast treaty text, prompting Chair Manalo to
request Jukka Leides (Finland), the chair of the SCCR, to hold intensive
informal consultations to explore possibilities for a compromise.

The decision to limit the scope of protection of the treaty to signal
theft was welcomed by those who found the original draft too
far-reaching. Thiru Balasubramaniam of the Consumer Project on
Technology welcomed WIPO members' decision "to pursue a signal-based
approach in this treaty in lieu of granting dangerous new entitlements
to broadcasters." "As we made clear to the WIPO General Assembly," he
added, "convening a diplomatic conference at this stage would have been
premature."

In addition to fleshing out the details of a 'signal-based approach,'
negotiators will use the January and June preparatory meetings of the
SCCR to discuss issues on which there is no consensus -- for example,
whether the treaty should cover technological protection measures such
as 'broadcast flags' that make transmissions unrecordable. The two
meetings will aim to amend the existing draft treaty in order to submit
a new basic agreement proposal to the diplomatic conference.

*Development agenda discussions to continue*

Finding themselves unable to agree on a common WIPO development agenda,
member states resolved to extend the mandate of the committee in which
proposals on the issue are being discussed for the coming year. Some
observers saw the commitment to continue this work as the recent General
Assembly's most noteworthy accomplishment.

The development agenda negotiations spring from a September 2004
proposal from the 'Friends of Development' (FoD*), a 14-member group of
developing countries, calling for wide-ranging changes to integrate UN
developmental objectives into every aspect of WIPO's mandate and
functioning (see BRIDGES Weekly
<http://www.ictsd.org/weekly/04-10-06/story1.htm>, 6 October 2004).

However, countries have been unable to agree on how to embed a
development agenda in WIPO's existing framework. The June meeting of
WIPO's committee on the issue, the Provisional Committee on Proposals
Related to a WIPO Development Agenda (PCDA), broke down with negotiators
unable to agree even on a set of recommendations for how to proceed,
leaving the matter to the recent General Assembly (see BRIDGES Weekly
<http://www.ictsd.org/weekly/06-07-05/story1.htm>, 5 July 2006).

The forum in which to have discussions on the development agenda has
been contentious, as has been a timeframe for producing tangible
results. Developing countries have feared that limiting these
discussions to a single committee would leave them sidelined. The US, on
the other hand, supported having the issue discussed within the existing
committee.

During the General Assembly, Argentina, on behalf of the FoD, complained
about the lack of progress in the PCDA. It pushed the group's June
summary of its own proposals and suggestions for reaching concrete
recommendations as a suitable basis for future discussions. It indicated
that the FoD group was open to consultations with the 'Group B'
(primarily developed) countries. An alternative basis for going forward
was a proposal by the Kyrgyz Republic, which closely followed PCDA Chair
Paraguayan Ambassador Rigoberto Gauto Vielman's suggestion to focus
first on proposals enjoying a high level of consensus -- an idea which
had been heavily criticised by many developing countries at the June
PCDA meeting, since they wanted all submissions treated equally.

Due to members' differences, General Assembly Chair Manalo called for
informal consultations. After several rounds of discussions, negotiators
struck a compromise on 2 October, deciding to renew the PCDA's mandate
for another year. The committee will hold two 5-day sessions to discuss
the 111 proposals made thus far on the development agenda. The first
will examine the 40 proposals identified by Gauto Vielman's
controversial June proposal as enjoying more widespread support; the
second will focus on the remaining 71 proposals. WIPO members directed
the PCDA to streamline proposals to avoid duplication, and to separate
proposals that require action from those that outline general
principles. They also empowered the chair of the PCDA to work with
member governments, rather than the WIPO Secretariat, to prepare the
initial working documents of the committee.

The PCDA is now mandated to make recommendations to the 2007 General
Assembly for action on the proposals that garner agreement, and to set
out a framework for continuing work on the remainder.

*Patent harmonisation deferred to next General Assembly*

The stalemate in the Standing Committee on Patents (SCP) on a potential
treaty on patent harmonisation persisted through the General Assembly.
Discussions in the committee have been adrift since April, when a
meeting collapsed in acrimony due to differences between developed and
developing countries on the terms of a treaty seeking to require states
to harmonise their distinct national patent systems (see BRIDGES Weekly
<http://www.ictsd.org/weekly/06-04-26/story6.htm>, 26 April 2006).
Ultimately, members simply agreed to defer discussions on the
'substantive patent law treaty' for a year.

Broadly speaking, developing countries fear that the wider definition of
patentability sought by developed countries could require them to extend
patent protection to inventions currently deemed unworthy of it because
of their relatively low level of 'inventiveness' or lack of clear
industrial applicability. They argue that this would be detrimental to
innovation and the public interest, and have pushed for any treaty to
address development concerns including exemptions to patentability, as
well as compulsory disclosure and benefit-sharing for any genetic
material or traditional knowledge used in an invention.

These divisions emerged once again at the General Assembly. Developed
countries wanted the SCP to start work on a limited list of priority
issues related to patent law -- specifically, the definitions of 'prior
art,' grace period, novelty and 'inventive step.' The FoD opposed this,
saying that the committee should also address a broader range of issues,
including development and policy space for flexibilities; exclusions
from patentability; exceptions to patent rights; anti-competitive
practices; disclosure of origin; prior informed consent, disclosure and
access and benefit sharing; and effective mechanisms to challenge the
validity of patents. Other countries against the proposed work plan
included Chile, India, Indonesia, and Pakistan. India called for a
"holistic approach" that would adequately address public interest concerns.

Brazil emphasised that patent law harmonisation should not come at the
expense of developing countries. It also pointed to growing concerns
about the patent system even in rich countries, and proposed carrying
out impact assessment studies before proceeding with talks on
harmonisation or norm setting.

Although the US expressly disagreed with the FoD's arguments, contending
that they went beyond the SCP's scope, it suggested that in the absence
of consensus, members could reconsider the issue at the next General
Assembly. Chair Manalo called upon delegations to submit proposals for
the future work of the SCP before December 2006. Informal consultations
will be held in the first half of 2007 with the aim of recommending a
work plan for the committee to that year's General Assembly.

*Work on traditional knowledge to proceed*

Member states agreed to have the Intergovernmental Committee on
Traditional Knowledge, Folklore and Genetic Resources (IGC) continue its
work on how best to protect such intellectual property. Many developing
countries called for the establishment of a legally binding instrument
to prevent the misappropriation of resources and biopiracy (the
uncompensated and undisclosed use of genetic materials). On the other
hand, developed countries such as the US and the EU acknowledged the
significance of the issue but called for further discussion.

*The Friends of Development are Argentina, Bolivia, Brazil, Cuba,
Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone,
South Africa, Tanzania, Uruguay and Venezuela.

ICTSD reporting; "International Broadcast Treaty faces hurdles,"
FINANCIAL TIMES, 3 October 2006; "WIPO Debates Direction, Priorities for
2007," ELECTRONIC FRONTIER FOUNDATION, 28 September 2006; "WIPO:
Diplomatic Conference on broadcast treaty premature," SOUTH-NORTH
DEVELOPMENT MONITOR (SUNS), 29 September 2006; "WIPO: Some doubts on
broadcast treaty after Assembly Decision," SOUTH-NORTH DEVELOPMENT
MONITOR (SUNS), 3 October 2006; "Decisions taken on Development Agenda,
patents and broadcasting," SOUTH-NORTH DEVELOPMENT MONITOR (SUNS), 3
October 2006.