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TWN Info Service on Intellectual Property Issues
(Oct10/02) Below is a news report on discussions that took place on some of the substantive issue during the WIPO General Assemblies. Regards SUNS #7008 Thursday 30 September 2010 WIPO: Assemblies Discuss Critical Substantive Issues Geneva, 29 Sep (Sangeeta Shashikant and Heba Wanis) -- Compared to the usual hectic and highly-charged Assemblies of the Member States of the World Intellectual Property Organization (WIPO) of previous years, this year's Assemblies, which conclude on 29 September, have passed with little or no quarrel over the substantive issues. The forty-eighth series of meetings of the WIPO Assemblies took place from 20-29 September. The theme for this year is "Innovation, Growth and Development: the Role of IP and Member States' Experiences." A reflection of developing countries' statements made during the General Assembly and a close examination of proposals and outcomes on the critical substantive items that have been debated throughout the year in WIPO have revealed the dynamic involvement of developing countries in steering the discussion, and persevering for development-oriented results in each of the substantive WIPO committees. THE DEVELOPMENT AGENDA In relation to the Development Agenda, after countless hours of informal wrangling by developing countries with Group B (composed of developed countries), the Committee on Development and IP (CDIP) adopted in April the "Coordination Mechanisms and Monitoring, Assessing and Reporting Modalities", a mechanism that provides a framework for monitoring and evaluating the implementation of the Development Agenda. The WIPO General Assembly approved the establishment of the mechanism. The last CDIP session in April had also witnessed the emergence of the "Development Agenda Group" (DAG), a new group of more than 18 like-minded developing countries, armed with the commitment of mainstreaming development considerations in WIPO. At the WIPO General Assembly, speaking on the Development Agenda (DA), Egypt, on behalf of the DAG, recalled that successful implementation of the DA "requires sustained and multi-faceted approach to the range of activities in WIPO; proactive leadership, continuous commitment, cooperation, engagement and oversight by Member States; an enduring pro-development cultural transformation within the WIPO Secretariat; a Member-State driven organization; and engagement with other intergovernmental organizations and civil society". It also expressed the DAG's commitment to actively contribute to mainstreaming the development dimension in all areas of WIPO's work, highlighting that it is incumbent on Members to shoulder the burden of proposing activities for implementation of the DA recommendations. Egypt also referred to the 2009 High-level Task Force on the Implementation of the Right to Development, and its view of the WIPO Development Agenda as "one of the most - and arguably the most - important of the current global initiatives in advancing the realization of the right to development", and reiterated the DAG's proposal that the Task Force be invited to the upcoming sixth CDIP session to present its findings. Consultations are ongoing on this matter, it added. [At the April CDIP meeting, there were suggestions made to invite the UN Special Rapporteurs on the Right to Food (Mr. Olivier de Schutter) and on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health (Mr. Anand Grover) to the next CDIP session to present their reports on the linkages between intellectual property (IP) and the right to food, and IP and the right to health. Consultations on this matter are also ongoing. (See SUNS #6917 dated 4 May 2010.)] COPYRIGHT The issue of exceptions and limitations to copyright (E&L) gained prominence in the Copyright Committee since it was first put on the agenda in July 2008 following an initial proposal by Brazil, Chile, Nicaragua and Uruguay. Since then, momentum has been building among developing countries for mandatory minimum exceptions and limitations. There is a proposal by Brazil, Ecuador and Paraguay before the Committee relating to a WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons and a timetable for adoption of the treaty, as well as a proposal submitted by the African Group on a Draft WIPO Treaty on Exceptions and Limitations for the Disabled, Educational and Research Institutions, Libraries and Archive Centres. The On the topic of copyright, Supporting Concerning the solution to move forward on this impasse on E&L, it said that a compromise could be found through a work programme or timetable for the adoption of a WIPO treaty both for improved access for the blind and visually-impaired, and for educational activities, libraries, archive services and disabled people. GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE (GRTKF) The Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) gained the reputation of being a talk-shop, as years of negotiations came to naught. At the 2009 GA, the resolve of developing countries resulted in the IGC obtaining a strengthened mandate to "undertake text-based negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection" of GRTKF. To accelerate the negotiations, developing countries, at the sixteenth IGC session (May 2010), pushed for the establishment of an inter-sessional working group (IWG). The first IWG session met on 19-23 July and focussed on text pertaining to Traditional Cultural Expressions (TCEs). As the GA considered the report on the IGC, developing countries once again renewed their call for an international binding instrument on the protection of GRTKF, albeit statements revealed a chasm between developed and developing countries on the legal nature of the international instrument. Some countries also stressed on more coherence between the negotiations in the IGC and those taking place at other international fora such as the Convention on Biological Diversity (CBD). Similarly, South Africa said it was "time to intensify these negotiations", as the Convention on Biological Diversity concludes its legally binding protocol on Access and Benefit-Sharing (ABS) in October 2010, and so "WIPO must conclude its negotiation next year so as to complement these processes" with a legally binding instrument or instruments. Similarly, While going along with some work on text-based negotiations in the IGC, the developed countries were clearly opposed to any notion of a binding instrument. The red-lines regarding substantive issues have been altered, adding that it remained concerned that any such instrument could have detrimental effects on its creative industries, technology innovation and on the public domain. Regarding the protection of genetic resources,
the PATENTS To the chagrin of developed countries, work on substantive patent law harmonization has come to a halt in the Patents Committee, as a result of concerns voiced by developing countries that such harmonization was not in their developmental interest and that the Patents Committee should also engage on issues that are in the interest of developing countries. In recent sessions, the Patents Committee has been involved in discussing studies prepared by the Secretariat over a range of issues. The fourteenth session of the Standing Committee on Patents (SCP) in January 2010 considered a number of preliminary studies including on standards and patents, exclusions from patentable subject matter, exceptions and limitations to rights, client-attorney privilege and transfer of technology. However, as the session could not reach agreement
on the agenda of the upcoming fifteenth SCP session (to be held from
11-15 October 2010), it was decided that the work programme of the fifteenth
session would be based on the agenda of the previous session. The fifteenth
session will also consider studies conducted on exclusions, and E&L;
and the proposal of Several developed countries called for resuming the efforts of harmonization of substantive patent law in the Patents Committee. ENFORCEMENT On the issue of enforcement, the developing countries have been stressing that IP enforcement should be in accordance with Recommendation No. 45 of the Development Agenda, which states: "To approach intellectual property enforcement in the context of broader societal interests and especially development-oriented concerns, with a view that the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations, in accordance with Article 7 of the TRIPS Agreement." To this end, The sixth session of the Advisory Committee on Enforcement (ACE), which will take place on 1-2 December 2010, will consider the following work programme: "Developing on the substantive study contained in WIPO/ACE/5/6, analyse and discuss IPRs infringements in all its complexities by asking the Secretariat to undertake: (i) A literature review of methodologies and gaps in the existing studies; (ii) Identification of different types of infractions and motivations for IPR infringements, taking into account social, economic and technological variables and different levels of development; (iii) Targeted studies with an aim to developing analytical methodologies that measure the social, economic and commercial impact of counterfeiting and piracy on societies, taking into account the diversity of economic and social realities, as well as different stages of development; (iv) Analysis of various efforts, alternate models and other possible options from a socioeconomic welfare perspective to address the counterfeiting and piracy challenges". During the discussion on this item, developing countries called upon the Secretariat for a balanced approach towards IP enforcement. Kenya said that IP enforcement should be discussed, taking cognisance of the WIPO Development Agenda, while India expressed hope that the work in the ACE will continue in a holistic manner with due respect to the developmental aspect, and keeping in mind the socioeconomic realities. The Secretariat announced that WIPO will be the
lead organiser of the sixth Global Congress on Combatting Counterfeiting
and Piracy, to be hosted by the French Intellectual Property Institute
in REFORM OF THE PATENT COOPERATION TREATY (PCT) In 2009, the Secretariat's road-map titled "The Future of the PCT" (PCT/WG/2/3) was set aside in the PCT Working Group over concerns about the harmonization of patent application, search and examination procedures. (See SUNS #6698 dated 12 May 2009). However, in 2010, Members considered "The Need for Improving the Functioning of the PCT System", (PCT/WG/3/2) and adopted several decisions in relation to PCT reform. (See SUNS #6947 dated 18 June 2010 and SUNS #6953 dated 28 June 2010). In relation to the reform of the PCT, the GA heard developing countries call for sustainable PCT reform that mainstreams development considerations and that does not result in global harmonisation of patents, in substance or in practice. There were also calls for WIPO to identify the root causes of the increase in patent applications and to address them, as well as to enhance the ability of national patent examiners to conduct search and examination. In relation to the Secretariat's study (PCT/WG/3/2),
Egypt stressed that "an effective long-term and sustainable resolution of the problems of backlogs and quality would require augmenting the capacity of Offices to conduct as comprehensive search and examination as possible for every application in a timely manner", and "this would require enhanced support for Offices, especially in developing countries which must be provided in accordance with the provisions of the PCT and the recommendations of the Development Agenda".
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