[Ip-health] TWN Info: Gurry appointed new DG by WIPO Assembly

[Sangeeta]

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WIPO: Gurry appointed new DG by WIPO Assembly
Published in SUNS #6553 dated 23 September 2008


Geneva, 22 Sep (Sangeeta Shashikant) -- At the first act of the WIPO Genera=
l
Assemblies that started this morning, Mr. Francis Gurry was appointed the
new Director General of WIPO, taking over from Dr. Kamil Idris.

Mr. Francis Gurry from Australia has been with WIPO since 1985, and was one
of the Deputy Directors. He was elected Director General by WIPO's 83-membe=
r
Coordination Committee (CC) on May 13, from 15 candidates vying for the
post.

In the final round of the election during the CC meeting, Gurry won by only
one vote, obtaining 42 votes to the 41 votes obtained by Mr. Jose Graca
Aranha from Brazil, who is also a WIPO staff member.

This change of leadership comes at a critical moment in the history of WIPO=
.
The organisation and its Secretariat in recent years have come under intens=
e
criticism from developing countries as well as development-oriented experts
and NGOs for being ideologically bound to and uncritically promoting
intellectual property protection and enforcement while failing to have an
in-depth understanding of the "development concerns" and issues of public
interests.

The developing countries consequently launched the WIPO Development Agenda
initiative aimed at reforming WIPO to be a development-oriented agency, in
line with the development principles of the UN.
Also, the initiatives of developed countries to set even higher or broader
IP standards in WIPO have recently suffered several setbacks. Some of the
developed countries have taken steps to take their IP initiatives outside o=
f
WIPO. Some (in particular the WIPO Secretariat) fear this may make WIPO
irrelevant.

The new DG will obviously face many serious challenges, in particular in
balancing the interests of developing and developed countries in WIPO.

The WIPO Assemblies, whose meetings continue until 30 September 2008,
includes the WIPO General Assembly (the main decision-making body) and the
assemblies of the various agreements administered by WIPO.

The meetings will discuss issues such as implementation of the Development
Agenda, outcomes of the WIPO Committees on copyright and patents, the
advisory committee on enforcement and the intergovernmental committee on
genetic resources, traditional knowledge and folklore.

Gurry, in his statement following his appointment, said that the "evolution
of technology, the economy and global society in recent years has raised
challenges of a fundamental nature" for WIPO, adding that in the last two
decades IP has come under the "full glare of the blazing sun of public
opinion and scrutiny".

He recognized that WIPO needs to anticipate and to address directly the
implications of developments affecting IP.

He raised issues of relevance to beneficiaries of the IP system (which tend
to be from developed countries) such as the problems of patent offices
choking on demand, returning value to creators, performers and their
business associates which is claimed to be under threat from convergence of
expression in digital technology and the distributional power of the
internet. He also presented figures on estimates of loss in international
trade due to counterfeiting.

On these issues, Gurry noted several developed country initiatives outside
of WIPO and urged for WIPO to be the centre for discussions.

He also raised the question of how IP can contribute to the reduction of
knowledge gap and to the greater participation on the part of developing an=
d
least developed countries in the benefits of innovation and the knowledge
economy, adding that the WIPO Development Agenda (DA) "provides a wonderful
opportunity for the Organisation to be part of the solution".

On traditional knowledge and traditional cultural expressions, Gurry claime=
d
that "it is time to move this process to concrete outcomes".

Gurry also proposed setting up of a LDC division, a division that provides
impact studies, with economic research and statistics, and a division that
focuses on the specific contribution of IP and WIPO within the framework of
collective action to address global challenges such as climate change,
epidemics, food security and access to health care.

He said he would finds ways to improve communication among constituents
(Member states, users and NGOs); as well improving the functioning and
performance of the Secretariat through a process of "strategic realignment"=
.

Algerian Ambassador Idriss Jazairy on behalf of the Africa Group outlined
some specific goals for the new DG, including to ensure the financial
integrity of the organization, to continue to make WIPO relevant to the
interests of developing as well as developed countries, to promote
implementation of the WIPO DA recommendations, and to promote access of
Africa scientific research institutions to technical information available
in the public domain so as to foster innovation.

He also called on the new DG to support to the WIPO committee on Genetic
Resources and Traditional Knowledge so that it can conclude a legally
binding treaty, and to explore further the interface between IP and issues
of access to medicines, public health, climate change. The DG should also
improve geographic representation in the professional staff and to reinforc=
e
the African Bureau which remains understaffed and under funded.

Pakistan on behalf of the Asian Group said that "WIPO's leadership
transition comes at a crucial moment" since the "scientific and
technological landscape of today is far different from the one a decade ago=
"
adding that at the global level, "questions are increasingly being raised i=
f
the current IP system enjoys balance and can adequately support innovation
and promote technological advancement in the 21st century particularly in
developing countries."

It further proposed "sincere discussions and meaningful dialogue on the
value and impact of IP system between various regional groups and among
member states, while acknowledging the different perspectives on the issues
and in the spirit of laying a solid foundation for cooperative and
progressive future of WIPO". It added that such an interaction would help i=
n
bridging the differences and in developing a common future for WIPO.

The real challenge for the new DG will be to equip the organisation with
"competencies, skills and a strengthened pro-development culture to
effectively cope with these challenges", added Pakistan.

Cuba on behalf of GRULAC expressed hope that under Gurry's leadership, the
Secretariat will facilitate systematic dialogue with member states and
increase participation of member states in establishing priorities as well
as representation of developing countries including members of GRULAC in th=
e
senior posts and throughout the staff of Secretariat.

It stressed the need for WIPO to play the role of a development agency and
to analyse IP issues from various angles including its undesirable effects.
US on behalf of Group B expressed hope that WIPO will continue to promote I=
P
in all regions, and improve on the granting and administration of IP rights
including reducing IP administrative barriers and improving transparency an=
d
good governance in WIPO.

Among the significant agenda items, the WIPO General Assembly will consider
the outcomes of the WIPO Copyright and patent committees. Both Committees
are at a critical stage vis a vis their future work programmes.

The Standing Committee on Copyright and Related Rights (SCCR) is in a state
of flux as to its future work. Talks on a proposed draft treaty on the
protection of broadcasting and cablecasting organizations collapsed last
year after failure to agree on the objectives, specific scope and object of
protection, despite strong push for a diplomatic conference by proponents o=
f
the treaty such as the EU. This issue has been a key topic for discussion i=
n
the SCCR since 1998.

Many developing countries are wary of the proposed treaty for it creates a
new layer of rights for organizations (broadcasters and cablecasters) that
are not creators, would add on costs to the consumers, and hinder access to
information and knowledge.

At the last SCCR meeting (10-13 March 2008), some developing countries
pushed for the adoption of a work plan to examine limitations and exception=
s
(L & E), which would lead to establishing a "consensus" on mandatory minimu=
m
levels of L&E for member states especially with regard to educational
activities, people with disabilities, libraries and archives and exceptions
that foster technological innovation.

Advocates of the work plan consider it necessary to strengthen L&E in order
to have a better balance between the rights of copyright holders and the
public interest. Chile's 2005 proposal notes that there is disparity in the
scope and depth of L&E amongst countries. The lack of a minimum common
international standard can inhibit making available to the public protected
material.

While this proposal received support from developing and some developed
countries, other developed countries such as Switzerland, US, European
Communities (EC), Japan objected or were cool towards the work plan
proposal.

Switzerland, the EC, Japan instead pushed for discussing the protection of
broadcasting and cablecasting organizations and the protection of
audiovisual performances.

Under the agenda item of future work, the EU proposed new issues to be put
on the agenda of the SCCR such as resale rights, collective management,
orphan works and applicable law. Some suspected that these issues were
proposed to divert attention away from proposals on L&E.

The Chair's Conclusions of the meeting, deferred decision on the future wor=
k
of the SCCR to the next session of the SCCR which will take place on
November 3-7, 2008. The meeting also agreed to retain all 3 issues i. e. th=
e
protection of audiovisual performances, exceptions and limitations and the
protection of broadcasting organizations on the agenda of the SCCR.

On the protection of audiovisual performances, the Conclusions states inter
alia that "delegations expressed... willingness to take up further
discussions on the substance, with the aim of finding a way forward" with
some delegations stressing the importance of finding a way to resolve the
outstanding substantive issues. It also states that the secretariat was als=
o
requested to prepare a factual document summarizing the outcome of the
activities organized.

It further states that the Secretariat will continue to organize seminars o=
n
the regional and national level, and was requested to organize an
information meeting in the context of the next session of the SCCR.

Discussions on the protection of audiovisual performances have stalled
following a failed diplomatic conference in December 2000. Since then the
Secretariat has been actively organizing national/regional meetings
promoting development of that issue.

On this issue, the documentation for WIPO General Assembly (WO/GA/36/5)
=A1=B0request the Secretariat to report to the GA on the deliberations of t=
he
SCCR on the deliberations of the SCCR on the protection of audiovisual
performances at its Session in September 2009=A1=B1.

It is not clear why the Secretariat=A9=F6s report gives special treatment t=
o
issues of the protection of audiovisual performances while issues such as L
& E are not treated in a similar fashion.

However noting that the next session of SCCR is tasked with discussion of
the future work, it is perhaps more appropriate that the report be made to
the SCCR than to the WIPO GA. The SCCR can then report the outcome of its
decision to the WIPO GA in 2009.

Further the documentation (para 12 (ii) of WO/GA/36/5) does not accurately
reflect the Chair=A9=F6s conclusion. The sub-paragraph in the document give=
s a
broader mandate and leeway to the Secretariat with regard to preparing a
report. On the other hand, the Chair=A9=F6s conclusion specifically refers =
to
preparation of a =A1=B0factual document summarizing the outcomes of the
activities organized=A9=F7 and =A9=F8a stocktaking of positions of members =
of the
SCCR=A1=B1.

If para 12 (ii) is retained, similar treatment should also be given to
issues of L&E.

On Exceptions and limitations, the Chair's Conclusions noted "Many of the
delegations who took the floor supported the proposal in whole or in part.
Other delegations expressed support or opposition to specific elements in
document SCCR/13/5".

It also states that "Several delegations requested to be given more time to
study the new proposal" and "Several delegations underlined the need for
speedy action to improve the access of visually impaired persons to
protected works."

It noted that the Secretariat was requested to make a study on exceptions
and limitations for the benefit of educational activities, including
distance education and the trans-border aspect in it and it was also
requested to organize an informative session on existing and forthcoming
studies.

It further stated that =A1=B0The Committee will consider a more detailed wo=
rk
plan on this item in its next session including the organization of seminar=
s
on regional and national level.=A1=B1

On the issue of Protection of Broadcasting Organisations, the Conclusions
noted that "The delegations who took the floor expressed their support in
continuing the work on this item in consonance with the mandate of the
General Assembly, and many delegations showed their interest towards the
conclusion of a treaty."

The Chair will also prepare an informal paper rendering his understanding o=
f
the main positions and divergences, to be dealt with in the next session of
the SCCR.

According to sources, the WIPO GA is expected to take note of the status of
the work in the SCCR.

The GA is also expected to take note of the contents of the Secretariat's
report on the work of the SCP (WO/GA/36/10), which includes a Summary by th=
e
Chair of the SCP prepared under the responsibility of the Chair on the
agreed outcome of the last SCP meeting from June 23- 26, 2008.

The Chair's Summary has awakened the SCP from a deep slumber. In the past,
there has been a deadlock in the SCP negotiations due to strong
disagreements in recent years largely along North-South lines, as to how SC=
P
should continue its work with regards to the draft Substantive Patent Law
Treaty (SPLT). As a result no formal SCP session has taken place since June
2005.

Developed countries (US, Japan and the European Patent Office (EPO) wish to
continue discussion only on 4 issues (prior art, grace period, novelty and
non obviousness/ inventive step) while most developing countries led by the
Group of Friends of Development (GFOD) would like any discussion on SPLT to
also address 9 other issues: development and policy space for flexibilities=
;
exclusion 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.

The 2007 GA agreed for the establishment of a report on issues that would
"contextualise the existing situation of the international patent system,
including references to the WIPO Development Agenda process" but would
"contain no conclusions".
The last SCP session mainly discussed WIPO's "Report on the International
Patent System" (SCP/12/3). While the meeting began with the usual
North-South differences over the work-programme, after much negotiation,
Member States agreed to the Chair's Summary (SCP/12/4 Rev).

The Summary identified a non-exhaustive list of issues (containing 18
topics) for further discussion and also agreed that WIPO=A9=F6s report (SCP=
/12/3)
remain open for written comments until the end of October 2008 and for
discussion at SCP=A9=F6s next session in early 2009. The list contains issu=
es of
developing and developed countries and is to be used for working towards a
work programme for the SCP.

In addition, the SCP asked the WIPO Secretariat to 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. These issues are from the list of 18 issues but
are not considered prioritized over the other issues contained in the list.

It also recommended that the Director General consider including provision
in the revised Program and Budget for 2009 for a Conference on issues
relating to the implications, including public policy implications, of
patents on certain areas of public policy, such as health, the environment,
climate change and food security.

With regards to the work of the IGC, in 2007 the GA approved the renewal of
the IGC mandate for 2 years.

At the 12th session of the IGC in February 2008, the WIPO Secretariat
prepared 2 draft documents that analysed the existing gaps in the protectio=
n
of traditional cultural expressions and folklore and traditional knowledge.

The documentation before the GA is a Report by the Secretariat containing a
summary of IGC's work, which the GA is asked to take note of. +




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