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TWN Info Service on Intellectual Property Issues
(May11/02) North-South clash results in suspension
of CDIP session Geneva, 10 May (Heba Wanis) -- A deadlock along North-South lines during negotiations on a project on South-South cooperation has resulted in the suspension of the seventh session of the Committee on Development and Intellectual Property (CDIP) of the World Intellectual Property Organization (WIPO). The suspension came via a vote of show of hands late night on 6 May, which concluded a week-long session of the CDIP that began on 2 May. The week-long meeting saw a lack of political will on the part of developed countries to effect progress at the CDIP, as each agenda item faced strong opposition from the developed countries. This led to several calls for a vote by Member States, an unprecedented move in the context of the CDIP. The divisive issues in the meeting included: modalities for the coordination, monitoring, assessing and reporting mechanism for the Development Agenda, a proposal by the Development Agenda Group (a group of like-minded developing countries) for a standing new agenda item in the CDIP on Intellectual Property (IP) and Development (CDIP/6/12 Rev.); a project proposed by the African Group on enhancing South-South cooperation on Intellectual Property (IP) and Development among Developing Countries and Least Developed Countries (CDIP/7/6); the revised project on patents and the public domain (CDIP/7/5 Rev.); and a scoping study on Copyright and Related Rights and the Public Domain (CDIP/7/INF/2). The apparent North-South clash peaked late evening
of 6 May, as intense disagreements emerged over the project on South-South
cooperation that was proposed by the African Group (originally proposed
by [The proposed project aims to create a formal avenue for South-South cooperation in WIPO between developing countries and Least Developed Countries (LDCs), in parallel to existing North-South cooperation. [Under this project, the African Group proposes: assigning of a focal point for South-South cooperation within the WIPO Secretariat; organizing inter-regional meetings among developing countries and LDCs for sharing of national experiences; organizing an Annual Conference on South-South Cooperation on IP and Development; providing support and assistance to developing countries and LDCs for training and capacity-building among themselves through the WIPO IP Development Matchmaking Database (IP-DMD); increasing the use of resource persons and experience-sharing from developing countries and LDCs in WIPO technical assistance activities; and dedicating a web-page to South-South cooperation on the WIPO website.] Group B (composed of developed countries) and
the According to some sources, during informal consultations, the developed countries also proposed changing the title of the project to include "trilateral" cooperation, in order to include developed countries in the project. However, such an approach was also not acceptable to the African Group. The developed countries further pushed to reduce the number of conferences. This was accepted by the African Group. South Africa, coordinating the African Group, presented a final ‘package' as a compromise, i. e. an inter-regional meeting that is exclusive to developing countries and LDCs to be followed by a conference open to the participation of all Member States, and then a second inter-regional meeting where developed countries would participate as observers. In response, A resulting deadlock on the matter led Group B opposed this call, suggesting instead,
voting by secret ballot. [According to Rule 28 of the WIPO Rules of Procedure, voting by secret ballot is used for "elections and decisions concerning States or individuals".] Several developing countries objected to such
an interpretation. WIPO's Legal Counsel, to the surprise of many Member States, took the position that Member States can interpret the Rules of Procedure differently. This led The CDIP session was suspended by a vote of show of hands, with discussions to be resumed when it meets again in November. MODALITIES OF THE COORDINATION, MONITORING, ASSESSING AND REPORTING MECHANISM FOR THE DEVELOPMENT AGENDA Discussion on the modalities took place mostly during the informal consultations. [Developing countries have been calling for a robust coordination mechanism, since it formed a core component of the 2007 WIPO General Assembly (GA) mandate, which requested the CDIP to "monitor, assess, discuss and report on the implementation of all recommendations adopted, and for that purpose, it shall coordinate with relevant WIPO bodies". [Such a mechanism was agreed to by the WIPO General Assemblies held on 20-29 September 2010 (WO/GA/39/7, Annex II). The agreed coordination mechanism included instructing WIPO bodies to identify the ways in which the Development Agenda (DA) recommendations are to be mainstreamed in their work and to include in their annual reports to the Assemblies a description of their contribution on DA implementation, with the GA forwarding these reports to the CDIP for discussion. The GA may request the Chairs of the relevant WIPO bodies to provide it with any information or clarification on the reports that may be required.] In its opening statement at the CDIP meeting,
Towards this end, during the CDIP meeting, The draft text proposed by "Bearing in mind the mandate of the Committee on Development and Intellectual Property (CDIP) to 'Monitor, assess, discuss and report on the implementation of all recommendations and for that purpose coordinate with relevant WIPO bodies', and "The decision of the 2010 WIPO General Assembly contained in Annex II of the document WO/GA/39/7 titled ‘Coordination Mechanisms and Monitoring, Assessing and Reporting Modalities', which, inter alia, recognised that the aim of the Development Agenda is to ensure that development considerations form an integral part of WIPO's work and that the coordination mechanism should promote this aim; "It is agreed that: "1. All WIPO Committees and bodies will report annually to the General Assembly about the manner in which Development Agenda recommendations are being mainstreamed in their work, and how they are contributing to the implementation of the respective Development Agenda recommendations. "2. To this end, the session of the Committee/body immediately preceding the session of the General Assembly, will contain a standing agenda item titled 'Implementation of the Development Agenda'. "3. Under the above agenda item, all Members of the Committee/body will be invited by the Chair to provide their views and comment on the mainstreaming of the Development Agenda in the work of that Committee/body. "4. The Chair of the Committee/body will compile the views expressed under this agenda item, and forward the compilation to the Chair of the General Assembly, as the report of the Committee/body to the General Assembly, required under Annex II of document WO/GA/39/7. "5. The General Assembly will consider the report and may request the Chair of the relevant WIPO body to provide it with any information or clarification on the report that may be required. "6. After considering the report, the General Assembly shall forward the report to the CDIP for discussion under the first substantive item of its Agenda. Sufficient time would be allocated to the agenda item to complete its deliberations within the meeting schedule. The duration of the CDIP sessions shall be extended on an exceptional basis, if a clear need is identified, subject to the agreement of all Member States. In addition, during discussion of future work, the Committee may consider the duration of the next CDIP meeting. "7. The CDIP shall include a review of the implementation of the Development Agenda recommendations in its report to the General Assembly, to be discussed in the General Assembly under the standing item of the ‘Report of the CDIP', as a sub-item entitled 'Review of the implementation of the Development Agenda Recommendations'." Another informal paper containing a list of 18 WIPO bodies that would report to the WIPO GA on DA's implementation was also distributed. The paper also states that "This list remains open and may be revised as agreed by Member States". [The 18 bodies listed in the informal paper are: Coordination Committee; Programme and Budget Committee; CDIP; Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore (IGC); the Standing Committee on Copyright and Related Rights; the Standing Committee on Patents; Standing Committee on Trademarks, Industrial Designs and Geographical Indications; Committee on WIPO Standards; Advisory Committee on Enforcement; Audit Committee; Patent Cooperation Treaty Working Group; IPC (International Patent Classification) Committee of Experts; IPC Revision Working Group; the Nice Union ad hoc Working Group; the Working group on the legal development of the Lisbon system; the Working Group on the legal development of the Madrid system for international registration of Marks; Working Group on the review of rule 3(4) of the regulation under the Singapore Treaty on the law of Trademarks; and Inter-sessional Working Groups under the IGC.] The developed countries are keen to limit the number of WIPO bodies that will report on the implementation of the DA, while developing countries would like to extend the reporting obligation to all WIPO bodies. As the matter remains unresolved, discussion on this issue will resume at the next CDIP session. IP AND DEVELOPMENT At the last session of the CDIP (sixth session held on 22-26 November 2010), Brazil, on behalf of the DAG, had tabled a proposal calling for the implementation of the third pillar of the mandate of the CDIP, i. e. "discuss IP and development related issues as agreed by the Committee, as well as those decided by the General Assembly" (CDIP/6/12/rev). The proposal sought to include an additional standing agenda item in the CDIP entitled "IP and development-related issues". This proposal was an agenda item at the seventh session last week, but little progress was made on this issue, as positions between developed and developing countries were polarized. Further, The issue remains pending, as the CDIP session was suspended. PATENTS AND THE PUBLIC DOMAIN Another controversial topic discussed was the revised project on patents and the public domain (CDIP/7/5) to implement Recommendations 16 and 20 of the Development Agenda. The project contains two components, one being a micro-level study on patents and the public domain that will analyse, in particular, the impact of certain enterprise practices in the field of patents on the public domain and the important role of a rich and accessible public domain, as well as enterprise practices that could enhance benefits of a rich and accessible public domain or, where that is not the case, that may encourage a robust public domain. The second component is the consideration of patents and the public domain in the context of norm-setting. The project also envisages an expert panel or a conference on patents and the public domain during the first quarter of 2013. The developed countries were generally unwilling to consider the project, calling it a "duplication of effort", as they referred to discussions taking place in WIPO's Committee on Patents. In response, developing countries criticised what they viewed as the overuse of the term "duplication". "This is not going to take us anywhere,"
The The project will be discussed further at the next CDIP meeting. SCOPING STUDY ON COPYRIGHT AND RELATED RIGHTS AND THE PUBLIC DOMAIN Another item discussed was the "Scoping study on copyright and related rights and the public domain" (CDIP/7 INF/2) prepared by Mrs Sevrine Dussolier, Professor, University of Namur, Belgium, under the project on Intellectual Property and the Public Domain (CDIP/4/3/REV). The study includes an evaluation of the role of the public domain in copyright and recommendations in this regard. Many developing countries ( [The proposed recommendations include modifying the 1996 WIPO Treaties to integrate in the definition of "Rights Management Information", any electronic information pertaining to public domain works and to prohibit a technical impediment to reproduce, publicly communicate or make available a work that has fallen into the public domain on the rationale that there is no legal basis for the enforcement of technical protection measures applied to the public domain.] Developed countries, particularly the OTHER DISCUSSIONS Interventions under the Director-General's Report on Implementation of the Development Agenda (contained in document CDIP/7/2) revealed several reservations by developing countries on the report. On WIPO's engagement with other UN organisations,
It added that on issues that have not been discussed by Member States, or a consensus reached thereon, it would be premature for WIPO to define a position for itself. A study on Patent-Related Flexibilities in the Multilateral Legal Framework and their Legislative Implementation at the National and Regional Levels - Part II (document CDIP/7/3) was also discussed during the meeting. Several developing country delegations also specifically expressed their discontent with paragraph 83 of the study under Section V on Substantive Examination. The paragraph states that "Conducting search and substantive examination for all applications may thus not be the best approach for all patent offices", and recommends "different options", that is, "conducting only formal examination, or conducting formal examination and search, or conducting also substantive examination, but relying on work carried out by others via cooperation arrangements". [This paragraph is in line with WIPO Secretariat's continuous promotion of "outsourcing of substantive patent examination".]
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