[Ip-health] SUNS: Countries say, Diplomatic Conference on broadcast treaty premature

[Sangeeta]

SUNS #6109 Friday 29 September 2006

WIPO: Diplomatic Conference on broadcast treaty premature

Geneva, 28 Sep (Sangeeta Shashikant) -- Several developing countries
cautioned against approving the recommendations of the WIPO Standing
Committee on Copyright and Related Rights (SCCR) to convene a Diplomatic
Conference on the protection of broadcasting and cablecasting organizations
during discussions on this agenda item on Wednesday at the WIPO General
Assembly.

These developing countries called for the continuation of discussions in
order to reduce the currently wide disagreements over the draft text that is
to be the basis for discussions at the Diplomatic Conference.

The United States, a major proponent of the proposed treaty, was actually
the first to proclaim that a Diplomatic Conference was neither "timely nor
appropriate", as the text is not sufficiently stable to be considered as a
basic proposal for the conference.

Thereafter, India, Iran, Indonesia, Chile, Canada and Uruguay took the view
that the draft text that will be the basis for discussion at the Diplomatic
Conference did not command sufficient consensus to guarantee a successful
conference.

On the two other issues of the work plan for WIPO's Standing Committee on
Patents (SCP) in respect of the Substantive Patent Law Treaty (SPLT), and
the direction and future of the Development Agenda initiative, as
anticipated, there was no agreement among Members during the debate on these
issues.

Informal consultations are being conducted on all the three abovementioned
issues. The first round of informal consultations on the Development Agenda
by the Chairman of the General Assembly (GA), Ambassador Enrique Manalo of
the Philippines, took place on Wednesday afternoon.

During the discussions on the work of the Intergovernmental Committee on
Intellectual Property, Traditional Knowledge and Folklore (IGC), developing
countries such as Malaysia, India, Indonesia, Bolivia, China, Kenya, South
Africa, Algeria, and Brazil stressed the need for the work at the IGC to be
accelerated and concluded. Several of these delegations also stressed the
importance of having an international legally-binding instrument to protect
traditional knowledge, traditional cultural expressions and genetic
resources from misappropriation.

However, the EC as well as other developed countries such as the US and
Japan, did not appear keen on such an instrument and merely reiterated that
they recognized the importance of this issue.

The recommendation on the convening of a Diplomatic Conference from 11 July-
1August 2007 was made at the 15th Session of the SCCR in early September -
the objective being to negotiate and conclude a WIPO treaty on the
protection of broadcasting organizations, including cablecasting
organizations. According to the recommendation before the GA, the draft text
that will be the basis for discussion will be the "Revised Draft Basic
Proposal SCCR/15/2".

The Committee also recommended that a special two-day meeting be held to
clarify outstanding issues in conjunction with a preparatory meeting that
will be convened in January to prepare for the necessary modalities of the
Diplomatic Conference.

During the debate on Wednesday, the US highlighted the wide differences
among Members by pointing to the fact that two years ago the text was 89
pages long with 28 alternatives, but currently the text is 108 pages long
with 47 alternatives.

The US expressed concern that the conference would not be successful, as
much had to be resolved. More meetings were needed to resolve the
outstanding issues, the US said, adding that they will not seek to include
webcasting or new transmission services, as these will be dealt with on a
separate track. The US also said that the Copyright Committee had taken
premature action, which it could not support as there is no consensus.

India said that although the issues of webcasting and simulcasting have been
excluded from the scope, all other issues remain unresolved. It added that
while all the building blocks are there for a successful Diplomatic
Conference, there are also stumbling blocks in the text as it stands today
as there is no consensus on the broad contours. India urged for more formal
meetings of the Copyright Committee to sort out outstanding issues before
moving forward to a Diplomatic Conference.

In relation to the special two-day meeting, India said that it needed
clarification on the validity of this meeting - if it is an informal
meeting, it was not sure of the impact of the conclusions drawn at that
meeting on the Diplomatic Conference.

Chile also said that the "the text simply reflects the fact that there is no
consensus on anything". It also said that there were doubts among
delegations about the proposed treaty. Some delegations had called for
development impact studies.

Chile supported further meetings of the Copyright Committee and said that it
preferred that the 2008 GA recommend the convening of a Diplomatic
Conference. It also said that the Committee should also discuss other issues
such as the proposal on exceptions and limitations put forward by its
delegation.

Nigeria, on behalf of the African Group, said that the Draft Basic Proposal
had to be cleaned up to remove ambiguities and to reduce as many alternative
articles as possible to reduce the risk of failure. It also said that in
principle it supported having a Diplomatic Conference.

The statement of the African Group was not clear in relation to whether it
is supporting or opposing the recommendation on the convening of the
Diplomatic Conference.

Kenya, a member of the African Group, said that while there are issues that
needed to be thrashed out, this can be done in the meeting being held before
the Diplomatic Conference. It thus supported the convening of a Diplomatic
Conference.

Another member of the same group, South Africa, said that there was much
that needed to be done before having a Diplomatic Conference.

The League of Arab States, an intergovernmental organization and an observer
at the meeting, took the floor and appeared to speak on behalf of the Arab
States. It took the position that the Arab countries did not oppose the
convening of a Diplomatic Conference. However, it is not clear whether the
general statement was in relation to the recommendation before the Assembly.

The EC supported the recommendation before the GA on the basis that there
were many building blocks to a successful Diplomatic Conference. The other
countries that similarly favoured approving the recommendation are Japan,
Nicaragua, Croatia (on behalf of the Central European and Baltic States), El
Salvador, Mexico, Norway, Mongolia, Krgystan, Ukraine, Azerbaijan, Russian
Federation, Singapore, Morocco, Algeria and Macedonia.

The Chairman of the General Assembly requested the assistance of the
Chairman of the Copyright Committee, Jukka Liedes of Finland, to conduct
informal consultations on this issue with the different delegations.

Following this instruction, the Chair of the Copyright Committee released on
Thursday morning a draft decision following his informal consultations, and
this draft is expected to be the basis for broader informal discussions
later on Thursday.

The main differences between the recommendation of the Committee and the
draft decision are: the draft decision states that the GA "approves" the
convening of a Diplomatic Conference; the draft changes the date of the
Diplomatic Conference to November 19-December 7, 2007; and the date of the
meeting of the preparatory committee to June 2007.

In addition, the draft decision states that the holding of the Diplomatic
Conference is subject to conditions that two special sessions of the SCCR
(instead of the special two-day meeting), "to clarify the outstanding
issues, will be convened, the first one in January 2007, and the second one
in June 2007 in conjunction with the meeting of the preparatory committee".

The draft decision adds that "it is understood that the session of the SCCR
should aim to agree and finalise, on a signal-based approach, the
objectives, specific scope and object of protection with a view to
submitting to the Diplomatic Conference a revised basic proposal, which will
amend the relevant parts of the Revised Draft Basic proposal..."

Discussions on the Development Agenda came up late Tuesday evening, and
different approaches were proposed by delegations on how to take the
initiative forward.

The Group of Friends of Development (GFOD) in their statement on Monday had
already called for the renewal of the mandate of the Provisional Committee
(PCDA) for another two years, until 2008, with three meetings being held
between now and the 2007 GA. They had said that the renewed PCDA would be in
charge of presenting to the next GA a substantial draft recommendation on a
first set of action points and a framework for the way forward. In the
second year, the PCDA would work out the remaining proposals into another
draft recommendation to be adopted by the 2008 GA.

On Tuesday, the Ambassador of Argentina Alberto Dumont, on behalf of GFOD,
expressed disappointment that the exercise had not been as fruitful as
expected. He stressed that all delegations had highlighted the importance of
the development issue.

He also said that they had tried to simplify the exercise through Doc.
PCDA/2/2 dated 23 June 2006, which he felt was a good basis for carrying
through the process. He added that he understood the Group B's (developed
countries) view that there was need for clarity on the procedure. The GFOD
was open to consultations on how to make progress.

The paper PCDA/2/2 basically summarizes many of the proposals in earlier
GFOD papers, but this time in the form of a Decision that the Committee
would send on as recommendations to the General Assembly. It also
incorporates some proposals made by other delegations.

The Kyrgyz Republic had also submitted a draft decision at the 2nd PCDA
meeting. The draft decision basically reflects the paper presented by the
Chairman of the PCDA, Ambassador Rigoberto Gauto Vielman of Paraguay, which
has been rejected by many delegations. (See SUNS #6105 dated 25 September
2006.)

Some delegations that were supportive of this approach are those of Group B,
Central European and the Baltic States, and Mexico.

The Chair of the General Assembly, summarizing the various interventions,
said that it was clear that all delegations wanted a continuation of the
process, with slight nuances on how to continue and in what form. He said
there were some elements that needed to be considered and decided on, i. e.
appropriate forum, the need to have tangible results, appropriate time frame
and the process that will have to be adopted to provide tangible results.

When pushed by the Kyrgyz Republic as to which draft decision the Chair will
use as a basis for consultations, the Chair said that he would conduct
open-ended informal consultations to have intensive discussions on the
elements and see whether he could come up with an agreed text.

On Wednesday afternoon, such consultations were held. In the consultations,
the African Group presented a draft resolution, which according to some of
the African delegates, was received favorably by many other delegations.

The draft resolution is along the lines of the Group's position presented in
its general statement (See SUNS #6107 dated 27 September 2006)

In respect of the work-plan for the SCP, delegations held on to their known
positions.

Switzerland, on behalf of Group B, said that it continued to believe that a
limited work plan was the way forward, i. e. addressing the "initial package
of priority items"- the "definition of prior art, grace period, novelty and
non obviousness/inventive step".

Japan added that much of WIPO's revenue comes from the fees of the patent
cooperation system and thus it is imperative to respond to the needs of the
users.

Argentina, on behalf of the GFOD, had already put forward their position on
the first day of the Assembly - that the work plan in respect of the SPLT
should also discuss items of interest to developing countries such as
development and policy space for flexibilities; exclusions from
patentability; exceptions to patent rights; anti-competitive practices;
disclosure of origin, prior informed consent and benefit-sharing; effective
mechanisms to challenge the validity of patents; sufficiency of disclosure;
transfer of technology; and alternative models to promote innovation, on an
equal footing with the four issues proposed by Group B.

During the debate on the work plan, Argentina said that perhaps the road to
harmonisation is not something Members wish to do and there might be other
topics that the SCP can deal with.

The UK Ambassador who was also the Chair at the informal SCP session held
earlier this year said that there were basically two camps, those who wanted
to prioritise the work and those who felt that all issues have to be treated
on an equal footing.

Brazil said that WIPO is not a multilateral patent system. As a UN agency,
development should be the core objective of the organization. It added that
harmonisation cannot take place at the expense of the interests of the
developing countries, which make up the majority of the membership.

Brazil said that the Open Forum on the SPLT raised many issues that must be
mainstreamed in the SCP. It also said that there is a growing critique of
the patent system among academics, in government bodies, think tanks,
intergovernmental organisations, non-governmental organizations and even in
institutions integrated by developed countries such as the OECD. This
reality should not be ignored by the SCP, it said.

A way of including this critique has to be found so that a more profound
debate on those issues can be held. It also stressed the need for impact
assessments to underpin the harmonisation process, adding that norm setting
cannot take place blindly without such studies. Brazil further said that for
developing countries, the issue is the quality of life of the people and
patents should not erode that quality of life.

China agreed that discussions should focus on selected items but these items
should deal with the concerns of developed and developing countries. It
added that discussion at least on disclosure in patent applications and
genetic resources should be included.

Kenya, Bolivia, Indonesia, Iran, Ecuador, Cuba, Pakistan and Chile were
among some of the developing countries that were against a limited work
plan.

India took a similar position, saying that Members cannot lose sight of the
fact that harmonisation impacts access to technology, public health etc. It
suggested a new and "holistic" approach with a breath of fresh air, if the
process is to move forward.

The US reiterated its position that WIPO's mandate is to try to improve the
IP system, streamline it and promote development. Many of the topics
suggested, for example, anti-competitive practices, and alternative models
of promoting innovation are beyond the expertise of the mandate of the SCP
and WIPO. It also said that it could not support a work programme that will
not facilitate consensus. It added that if there is no agreement on the work
plan, then perhaps it was most prudent to revert to the work plan at the
next GA.

The Chair, in noting the impasse, said that he intended to conduct informal
consultations on the matter, and that he will come up with a working text
for the consultations. +

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