[Ip-health] WIPO's war against consumer interests

[Thiru Balasubramaniam]

WIPO's war against consumer interests

By James Love

September 29, 2005 (Geneva)


These are a few quick reflections on the WIPO General Assembly, or
perhaps more aptly described as the WIPO war on consumer interests.

There are several issues in play at this year's GA, and they are
really the same issues from the 2004 GA  --  The Broadcast/webcast
treaty, the proposed substantive patent law treaty (SPLT) and the
WIPO development agenda.

The WIPO Secretariat, the US government (and to a similar extent, the
European Commission) and right-owner interests have been increasingly
alarmed at the new sophistication of the Geneva IP negotiators, and
the new participation and influence of NGOs representing free
software, development, libraries, free speech, digital rights, human
rights, consumers, public health, and other civil society concerns.
The 2004 decision to discuss the WIPO development agenda (DA) took
people by surprise.

You can think of the WIPO DA as basically two parts -- a number of
policy goals, such as to promote a treaty on access to knowledge, and
other pro-consumer initiatives, and a set of process and structural
changes in WIPO, including a move to a more evidence based analysis
of the impact of proposed standards for intellectual property, and
independent review of the technical assistance programs to developing
countries.

The new strategy by the secretariat, the US and the right-owners (S-
US-RO), is to circumvent to the Geneva diplomats, who share
information, coordinate and now have much stronger ties to a variety
of experts on intellectual property, and to push decision making out
to persons that the WIPO secretariat (and right-owners) find
sympathetic or easy to manipulate.  The Geneva delegates and stronger
developing country delegations (like Brazil or India), are described
as ideologues by the S-US-RO, and the people they identify as
potential allies in developing countries are described as the "ip
experts."  Typically they come from local patent or copyright office,
or ministries of industry.   A well known example of this last year
was a meeting in Casablanca, where WIPO invited certain people,
sometimes in their individual capacity, and they manufactured a
"consensus" to moving forward on the SPLT exactly along the lines of
the US/EC position.  This blew up, as countries distanced themselves
from the outcome.  The second attempt is taking place now, on the
Broadcast/webcast treaty.  The Broadcast/webcast treaty was beginning
to face mounting criticism within the WIPO Standing Committee on
Copyright and Related Rights (SCCR), and it was not moving toward a
diplomatic conference in the GA, and it was one of the targets of the
DA, which was seeking to slow down new IPR obligations until WIPO
could become more evidence based and friendly to human rights,
innovation and development.

The Secretariat, led by Deputy Director Rita Hayes (a former USTR
head), then created a series of regional consultations on the Casting
treaty.  These meetings were not very transparent, consumer interests
were rarely represented (consumer groups were given 10 minutes to
speak in the Brussels consultation, and not invited to most other
regional consultations), and only some countries attended.  WIPO
often went out of diplomatic channels to pick participants.  Those
who did attend had nice trips, sometimes in resorts, with per diem.
For its efforts, WIPO organized its own team of gung ho supporters of
the Casting treaty.  Even though the presentations on the substance
were highly misleading and unbalanced, the participants are these
meeting were often the only people in a country that had a clue about
the treaty, and in countries with low capacity to follow things, they
became the policy makers.  The US and EC Broadcasters and webcasters
also funded their counterparts to participate in events and push for
the most anti-consumer provisions.  This was very effective in Kenya
and in many other countries.

At the meeting this week in Geneva, WIPO had a very large cheering
section from smaller developing countries for the most expansive set
of rights, demanding a diplomatic conference as soon as possible.

John Dudas, the head of the US PTO, was representing the US the
debate on the Casting treaty, telling WIPO how urgent it was to push
for this treaty.  Dudas did not mention that the entire treaty is
contrary to US law, or that he has never even proposed such rights
for broadcasters or webcasters in the US Congress.

At WIPO yesterday a compromise was reached with EC and the countries
who oppose a quick decision on the diplomatic conference, effectively
putting the decision off until at least two more meetings of the SCCR
are held to discuss the substantive issues, and to come up with a
narrower terms of reference for the treaty (righ now everything is
included in the draft, including the longest terms, most expansive
rights, and coverage of all web pages).  The US was in the room while
the compromise was reached, and did not object, but then waited for
the main meeting to restart before they shot it down, apparently to
keep the issue alive until they can trade it for something else.   So
we don't know yet where things stand on the casting treaty.

As it stands, the big push is to do this without any analysis of the
impact of the treaty on copyright owners or the public, which is a
victory for the broadcasters and the WIPO Secretariat and the USPTO,
but a shame for a UN agency.

  James Love
---------------------------------
James Love, CPTech / www.cptech.org / mailto:james.love@cptech.org /
tel. +1.202.332.2670 / mobile +1.202.361.3040