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TWN Info Service
on Intellectual Property Issues (Sept08/03)
WIPO: Gurry
appointed new DG by WIPO Assembly
Mr. Francis Gurry
from 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 intense 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. 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 and 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 claimed 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 reinforce 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 if 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 in 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 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. 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 of the treaty such as the EU. This issue has been a key topic for discussion in 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 exceptions (L & E), which would lead to establishing a "consensus" on mandatory minimum 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. While this proposal
received support from developing and some developed countries, other
developed countries such as 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 work 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. the 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 also requested to prepare a factual document summarizing the outcome of the activities organized. It further states that the Secretariat will continue to organize seminars on 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) “request the Secretariat to report to the GA on the deliberations of the SCCR on the deliberations of the SCCR on the protection of audiovisual performances at its Session in September 2009”. It is not clear why the Secretariat¹s report gives special treatment to 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 Chair¹s
conclusion. The sub-paragraph in the document gives a broader mandate
and leeway to the Secretariat with regard to preparing a report. On
the other hand, the Chair¹s conclusion specifically refers to preparation
of a “factual document summarizing the outcomes of the activities organized²
and ³a stocktaking of positions of members of the SCCR”. 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 “The Committee will consider a more detailed work plan on this item in its next session including the organization of seminars on regional and national level.” 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 of 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 the 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 SCP 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 Summary identified a non-exhaustive list of issues (containing 18 topics) for further discussion and also agreed that WIPO¹s report (SCP/12/3) remain open for written comments until the end of October 2008 and for discussion at SCP¹s next session in early 2009. The list contains issues 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 protection 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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