[upd-announce] Updates on the A2K Treaty Negotiation in Geneva

[davidt@public-domain.org]

UPD board member Shyamkrishna Balganesh is in Geneva this week for the
latest round of negotations on the WIPO development agenda and the access
to knowledge treaty. Below is the update he just posed to the UPD website
(http://www.public-domain.org) and the statement he delivered on behalf of
UPD.


Update from Geneva WIPO IIM-3: Day 1

The third Inter-Sessional Intergovernmental Meeting on a Development
Agenda for WIPO began today in Geneva. This is the third round of
negotiations on the Development Agenda, since it was proposed at the last
meeting of the General Assembly in September and the last one before the
next Assembly meeting. This meeting is especially crucial since the IIM is
required to submit a final report with its recommendations, for approval
by the Assembly and this is its last opportunity to formulate a coherent
plan of action on the Development Agenda.

Brazil seems to have made its intentions for the IIM-3 very clear on the
morning of Day 1, when it submitted a proposal on behalf og the Group of
Friends of Development, proposing a 'Draft Decision of the IIM'in writing,
covering the proposals previously highlighted by the Group. This proposal
is likely to be reasonably controversial, and one hopes matters dont come
down to a vote, along lines of the 12th SCCR that ended in confusion. All
the same, should the Brazilian proposal go through, it would be a major
victory for the Friends of Development. Among its six points listed, is
one which requires the WIPO to 'immediately initiate a process to consider
measures designed to improve the participation of civil society and public
interest NGOs in WIPO activities'.

In the post-lunch session, discussions focussed on specific development
agenda proposals in clusters. Proposal 1 deals with the amendment of the
WIPO Convention to reference the development dimension; 5 on the
establishment of the WERO and 6 on enhancing the participation of civil
society and public interest groups. A large number of countries spoke of
the impracticality of proposal 1 and that 5 involved too much time and
expenditure. On 6, while most countries agreed on the need to make WIPO
proceedings more participatory in a balanced way, most were also very
clear that the WIPO was and should always be a government-based
organization and that while outsiders should be allowed to participate,
they should not have a role in the actual decision-making. India, in an
interesting intervention noted that WIPO had come to view itself as an
organization focussing only on the expansion of intellectual property in
spite of the language contained in its own Convention and that proposal 1
derived from this unfortunate development. It supported a declaration to
the same effect as the amendment, that WIPO's mandate extended well beyond
what it currently did. On the WERO issue (proposal 5), India noted that it
was 'dismayed' to hear the negative comments of other countries on the
issue. Citing the example of IMF, where an independent evaluation body was
set up reporting independently to the Board of Directors, it supported the
creation of an independent WERO functioning outside the secretariat,
reporting to the Coordination Committee or the Assembly, to avoid being a
'ventriloquist's dummy'.

Day 2

The second day of the IIM commenced with countries making further comments
on the proposals of the Group of Friends of Development. Prior to the
commencement of the session, the delegation of the US distributed its own
draft decision for the IIM -- containing three short points -- all of
which related to requiring the General Assembly to transfer all the
matters currently under discussion at the IIM to the PCIPD, together with
a mandate from the Assembly that the PCIPD's mandate was wide enough to
cover this and that it would meet twice a year. The objective, it appeared
was to propose a direct counter to the draft decision circulated by Brazil
on behalf of the Friends of Development.

The morning session of Day 2 saw discussions focus on the PCIPD. The
Friends of Development had proposed the creation of a separate Standing
Committee to study the issue of technology transfer. The US however
opposed this and noted that this was under the competence of the PICPD to
handle. A series of interesting exchanges followed between Brazil and the
US, with Brazil accusing the US of opposing/rejecting everything being
discussed in the body.

Discussions then ended and the chair opened the floor to comments from
NGOs and IGOs. The UPD was given the opportunity to take the floor.
Several other NGO groups spoke as well -- the EFF, CSC, IPN, BSA, FSFE, IP
Justice, MSF and a few others. Some time later, the chair intervended to
stop NGO interventions for a while to let discussions between member
states continue, and promised to let the remaining NGOs deliver their
statements tomorrow. In the discussions that followed, the chair suggested
taking up the two competing proposals that had been tabled by Brazil and
the USA, as draft decisions for the IIM.

In elaborating on its proposal, Brazil echoed its earlier interventions
and also indicated that the points it had indicated there were by no means
exhaustive. In explaining its own draft decision, the US delegation was
dismissive of the Brazilian one and noted that it had excluded the
proposals made by several other member states/groups at the meeting. The
US delegation noted that some delegations might consider such an omission
'insulting'. The delegation of Argentina (a member of the Friends of
Development Group) expressed its view that such strong language was
uncalled for, and that the proposals indicated were not the only ones
which could be a part of the decision, but merely reflected what the Group
thought were the most easily acceptable ones. The matters appeared to be
locked, with neiter side being ready to budge. A few countries spoke in
favour of each of the proposals. At one point, the delegate of Morocco
stepped in to indicate that the African group (after negotiations with a
group led by Bahrain) was also likely to present its own version of the
draft decision and that the silence of the African countries was not to be
interpreted as a sign of disinterest.

The UK (speaking on behalf of the EU) then intervened to note that it had
a compromise decision, where it suggested convening three more IIMs next
year, but requiring that these be financed by the money set aside for the
PCIPD for the year 2006-07. It also sought to direct the agenda of these
meetings, by requiring the body to discuss issues which it deemed 'ripe to
harvest', i.e., on which a common consensus seemed to be emerging. The
Chair requested the UK to put this proposed decision down in writing and
circulate it. The proceedings were then adjourned with the matter to be
continued tomorrow morning. It seems unlikely that the US will be able to
block the proposal to hold further IIMs (which the Group of Friends of
Development and the EU seem to be in favour of) and transfer everything
right away to the PCIPD.

---------

The following statement was delivered by Shyamkrishna Balganesh on behalf
of the UPD:

Thank you, Mr. Chairman for the opportunity to take the floor at this
meeting.

The Union for the Public Domain (UPD) is an international civil society
organization that works for the promotion and enhancement of the public
domain. We continue to believe that the matters being discussed at this
meeting will be of lasting significance for the future of technology and
economic development in the developing world.

The UPD strongly supports the proposal of the Group of Friends of
Development to amend the WIPO Convention so as to include an express
reference to the development dimension. We would like to echo the
observations of some member states at previous meetings that the patent,
copyright and trademarks systems should cease to be viewed as ends in
themselves and come to be understood as means to an end =97- an end that
needs to be justified by reference to WIPO=92s broader U.N. mandate of
=91economic, social and cultural development=92 enumerated in Article 1 of =
the
1974 Agreement.

The UPD strongly disapproves of attempts made to over-simplify the content
of the present discussions by portraying them as a choice between blanket
support, and blanket opposition, for the diverse laws that include
copyright, patent, trademark, and others. Mischaracterizations such as
these obscure the true purpose of these discussions and are inimical to
constructive dialogue -=96 critical to taking the present discussions
forward.

The UPD supports the creation of an independent WIPO Research & Evaluation
Office (WERO) to conduct development impact assessments of WIPO=92s
activities and report directly to the General Assembly. We do not believe
that the Permanent Committee on Cooperation for Development Related to
Intellectual Property (PCIPD) will have either the capacity or
independence to oversee a task such as this.

The UPD strongly supports the idea of an Access to Knowledge Treaty. A
treaty such as this should attempt to balance the interests of rights
holders and the public at large and at the same time pay adequate
consideration to the needs of developing countries. In addition, it should
seek to safeguard and promote the role of the public domain in fostering
innovation and creativity.

The UPD believes that WIPO needs to be more open to civil society
participation in its policy-making activities. In specific, the
involvement of public interest groups from developing countries needs to
be enhanced. The WIPO should make an effort to actively solicit the views
of different public interest groups working in the developing world, in
its various policy-making bodies. This will of course, need to be
accompanied by a comprehensive attempt by WIPO to enhance public
accountability and participation.

Lastly, the UPD agrees that development must not be a 'pretext for
diluting international intellectual property'. We agree that it should not
be a pretext, but instead the very basis from which the patent, copyright
and trademark systems must seek their ultimate justification. When these
systems however come to impede socio-economic development -- when they
come to restrict access to essential educational tools, when they deny
individuals life-saving in the poorest parts of the world; `intellectual
property' is in danger of itself becoming the pretext under which we are
distracted from the complicated task of promoting development.