[Ip-health] Preview of WIPO General Assembly

[Martin Khor]

TWN Info Service on WTO and Trade Issues (Sept05/11)
27 September 2005
Third World Network
www.twnside.org.sg


PREVIEW OF WIPO GENERAL ASSEMBLY

The World Intellectual Property Organisation (WIPO) has begun its
2005 General Assembly on Monday 26 September.

It will be an important Assembly, as there are many controversial
decisions to be made:  (1) Decide on the future process and the
shape of the Development Agenda initiatve of the developing
countries;  (2) Decide on the future of the negotiations in the Patent
Committee for a substantive patent law treaty (SPLT);
(3) Decide on whether to convene a Diplomatic Conference on
a new Broadcasting Treaty which will give new rights to broadcasting
organisations.

Below is an article previewing the WIPO General Assembly.

with best wishes
Martin Khor
TWN


WIPO GENERAL ASSEMBLY TO DECIDE ON SOME KEY ISSUES

By Martin Khor (TWN), 25 September 2005

This year's WIPO General Assembly, which begins Monday 26 September and
will run to 5 October, will have a full agenda, with many decisions to be
taken that
will have significant effect on the future of the organization.

At last year's Assembly, and in many meetings since then, many developing
countries have been battling for a Development Agenda (DA) to be established
within WIPO. Although all members have subscribed to this in principle, in
practice, the developed countries may not mind having a discussion on it,
but have resisted the DA taking root or having it affect the rules, the
rule-making process or the nature of WIPO's functioning.

The division over the Development Agenda and its future is expected to cast
a long shadow over this year's Assembly. It will have to decide whether and
how the process is taken forward, and especially on the venue or forum for
the continued discussion.

Important decisions will also be taken on two norm-setting activities. The
first involves WIPO's patent committee, where a substantive patent law
treaty (SPLT) is being discussed. There is a North-South dispute whether the
discussions should focus only on issues which the developed countries are
interested in, or also include the issues which have been advocated by
developing countries.

This fight has significant effects, as it could lead to new rules globally
on what is and is not allowed to be patented in future. At present the
battle has led to an impasse on the SPLT negotiations, and the debate in the
General Assembly will determine if the impasse continues or is broken and if
so, how.

The second involves WIPO's copyright committee, where discussions have taken
place on the protection of broadcasting organizations. The secretariat and
the developed countries are pushing for convening a Diplomatic Conference to
launch negotiations on a new treaty. Some key developing countries are
against having such a conference, at least at this stage.

This year's Assembly is shaping up to be a battle on whether the developing
countries' initiative to reform WIPO can be sustained and expanded, not only
in the specific issue of the Development Agenda, but also whether the
principles called for in that Agenda can begin to be respected and
operationalised, especially in the discussions and decisions to be made on
the SPLT and the proposed broadcasting rights treaty, which are presently
the two most important norm-setting activities.

According to some diplomats, the developed countries can be expected to
propose (implicitly or explicitly) a "package deal" - that developing
countries agree to the SPLT negotiations to proceed according to the lines
proposed by developed countries, in exchange for the latter allowing the
Development Agenda discussion to proceed in the venue preferred by the
developing countries. The launch of negotiations for a broadcasting treaty
could also be part of this "package deal", or else a bonus for developed
countries.

Several developing countries, including the Friends of Development Group (
led by Argentina and Brazil) and some Asian countries including India, are
expected to insist that the Development Agenda be allowed to proceed without
pre-conditions, and that the merits of the SPLT and broadcasting treaty be
considered on their own, without their being linked to any "package deal."

On the issue of the Development Agenda, the key decisions to be taken at the
Assembly are whether the process is to be continued and how, as well as
whether it will be undertaken through the present inter-governmental
inter-sessional meetings (IIM) established by the 2004 Assembly, or through
a subsidiary committee, the PCIPD (Permanent Committee on Cooperation for
Development Related to Intellectual Property).

The developing countries want a strong mandate for continuing the work on
the Development Agenda, and through the IIM process. They are against the
proposal of many developed countries to shift the work to the PCIPD, which
has up to now only been dealing with matters related to technical
assistance.

The Development Agenda has a wide range of issues (including reviewing the
mandate and governance of WIPO, promoting pro-development norm-setting, an
independent evaluation unit, establishing guidelines for WIPO's technical
assistance programmes, and for technology transfer and competition policy).
The developing countries fear that if the DA process moves under the PCIPD,
there would be the risk of this broad agenda being narrowed down to
technical assistance issues.

There have been three IIM meetings since the last General Assembly. Many
proposals have been put forward, notably by the Friends of Development
Group. However, the IIM was unable to come to any agreement on
recommendations for taking the work forward, which it had been mandated to
do. It will thus only present a factual report of the discussions and
proposals, and the Assembly will take on the task of deciding the fate of
the Development Agenda.

The other major decision for the General Assembly is on the future work
programme of the Standing Committee on Patents (SCP). Member states were
divided over this work programme during the 11th session of the SCP on 1-2
June 2005.

The developed countries would like to use the SPLT to have an international
agreement on scope and definition of prior art, grace period, novelty and
inventive step, and have these globally harmonized in national patent laws.
Many developing countries have strong reservations on such a harmonization
exercise, as it may have adverse developmental effects.

Instead, they propose that the SPLT deal with reforming patent laws to take
more account of public interest flexibilities, the disclosure of origin of
genetic resources, transfer of technology and the curbing of
anti-competitive practices.

A controversy had erupted over the convening by the WIPO Director-General Dr
Kamil Idris of an informal consultation in Casablanca (involving a limited
number of countries) that came up with proposals along the lines advocated
by the developed countries. The SPLT negotiations would focus on the four
issues of interest to them, while the issues of the developing countries
would be transferred to the intergovernmental committee on genetic
resources, which at the moment is not involved in norm-setting.

During the June meeting of the SCP, many developing countries criticized the
untransparent and non-participatory procedure surrounding the Casablanca
meeting, as well as the substance of its proposals.

The debate over the SPLT will now be turned over to the General Assembly,
which will have to decide on how the SCP is to proceed with its work.

Another major issue before the General Assembly is whether to convene a
Diplomatic Conference on the Protection of Broadcasting Organizations. A new
broadcasting rights treaty had been advocated especially by some developed
countries, and a consolidated text has been discussed at the Copyright
Committee.

The convening of a Diplomatic Conference has been especially pushed by the
WIPO Secretariat, which in a paper for the Assembly has recommended that
such a conference be convened in the second quarter of 2006. The paper also
deals with the procedures for such a Conference, and one of the proposed
rules provides extraordinary rights of participation to the Secretariat.

The proposed Rule 3 states that the WIPO Director-General and any official
of the International Bureau designated by him "may participate in the
discussions of the Conference, meeting in Plenary, as well as in any
committee or working group thereof and may, at any time, make oral or
written statements, observations or suggestions to the Conference, meeting
in Plenary, and any committee or working group thereof concerning any
question under consideration."

Some diplomats have commented that such powers to be given to members of the
International Bureau (the Secretariat) would be both unprecedented and
inappropriate, as negotiations for rules, especially a new treaty, should be
carried out by member states, with the Secretariat playing only an
administrative function.

Some diplomats also have strong reservations about the Secretariat convening
six regional consultations in May-July 2005. The invitations had been issued
to technical experts in governments to participate in their personal
capacity. At the last Copyright Committee meeting last November, several
developing countries had indicated that they were not in favour of regional
consultations but preferred open-ended informal meetings that allowed all
Member States and observers to participate.

However, no open-ended meeting was convened, and instead the regional
consultations were organised. The regional consultations have, according to
the WIPO Secretariat report, produced broad agreement that a Diplomatic
Conference be convened. The legitimacy of the conclusions, and the
procedures in organising the consultations, may come up for discussion at
the Assembly.

On substance, the proposed broadcasting rights treaty is rather contentious
as many reservations have been expressed by some developing countries over
the need and scope of such a treaty. Some countries, as well as many NGOs,
have serious concerns, especially that the treaty would create a layer of
additional or new rights for parties (in this case broadcasting
organizations and webcasters) that are not authors of creative works, and
thus unfairly add on to costs to be borne by consumers, other users and the
public.

Among the subjects that have been contentious in previous discussions are
the term of protection, technological protection measures, and whether
web-casting should be part of the treaty.

The General Assembly will also decide whether the mandate of the
Intergovernmental Committee on Genetic Resources, Traditional Knowledge and
Folklore (IGC) should be extended to continue its work, and to provide the
IGC with directions.

Another agenda item on which there may be significant discussion is the
proposed programme and budget for 2006-2007. Included in this item is a
report by the Joint Inspection Unit of the United Nations, which contains a
critical review of the management and administration practices of WIPO.

(* With inputs from Sangeeta Shashikant.)