TWN Info Service on Intellectual Property Issues (Oct13/02)
2 October 2013
Third World Network 

WIPO: Hectic informal consultations to resolve

Geneva, 2 October (K. M. Gopakumar) - Member States are engaged in hectic informal consultations to find consensus on six pending agenda items on the last day of the General Assembly of the World Intellectual Property Organization (WIPO).

The morning plenary that was supposed to start at 10 am today has been postponed to facilitate the informal consultations. At the time of writing, the start of the plenary session remains uncertain and a long session into the night is expected. The WIPO Assemby's current session is from 27 September to 2 October.

Consensus is missing on the following six agenda items: Agenda 14 on program and budget for biennium 2014-15, Agenda 30 on governance, Agenda 33 on Considerationof the convening of a Diplomatic Conference for the Adoption of a Design Law Treaty, Agenda 34 on Matters Relating to the Standing Committee on Copyright and Related Rights, Agenda 36 on Reports on other WIPO Committees and on the issue of the Committee on WIPO Standards.

There is no consensus on four items in agenda 14 on program and budget for biennium 2014-15. These are programs no. 2, 4, 18 and 20.

Program no. 2 deals with trademark and budgets for holding a diplomatic conference to adopt a design law treaty. However, there is no consensus among Member States on this issue.

Program no. 4 provisions funds for convening a diplomatic conference for the adoption of international legal instruments. However, the Group B of developed countries is not agreeing on this issue.

Program no. 18 outlines the activities under two areas viz. the activities of the Intellectual Property (IP) and Global Challenge division of WIPO, and IP and Competition Policy. According to the Budget Document the objective of this program is to address "innovation and IP at the nexus of interconnected global issues, in particular Global Health, Climate Change and Food Security".

The following implementation strategies of the Global Challenge division are listed in the budget document: Developing and maintaining practical IP-based mechanisms and tools for addressing global challenges; providing support to Member States, intergovernmental organizations, civil society, and other stakeholders and assisting them in the identification of feasible approaches; developing objective and balanced information on the relationships among global challenges, innovation and technology transfer.

However the activities of the Global Challenge Division has come under criticism from Member States due to the absence of reporting of its activities to Member States. The work program of the Global Challenges Division has direct bearing on the WIPO Development Agenda adopted in 2007 by the General Assembly. Nevertheless, the activities of the Global Challenge Division are never reported to the Committee on Development and Intellectual Property (CDIP), a body created for the implementation of the Development Agenda. The Development Agenda Group (DAG) of several developing countries is insisting for the CDIP oversight on the activities of the Global Challenges division.

Some observers of the Global Challenges Division point out that key staffers who are working in the division have a past history of working with industry. The director of the division, Anatole Krattiger, is well known as a lobbyist for the agro-biotechnology industry. Similarly, a recent recruitment to the Division is Philip Stevens, who worked as the director of policy communication at the International Policy Network (IPN), a lobby group that advocates for IP maximalist policies (see: http://www.policy-network.net/ [1]).

According to the Center for Media and Democracy, the IPN is a corporate-funded campaigning group based in the United Kingdom set up in 2001. It originally had offices around the world in the USA, Chile and India. By 2003 all of the offices had closed down apart from the London one. The great bulk of the IPN's income is donations from corporations; in both 2003 and 2004 the proportion was about 85%. The UK branch subsequently disbanded in June 2011 with former chairman Linda Whetstone [2]leaving the group (See: http://www.sourcewatch.org/index.php? title=International_Policy_Network [3]).

Program 20 deals with WIPO's external relations, partnerships and external offices i. e. the opening of WIPO external offices. It proposes the opening up of five more external offices during the period 2014-15 in China, Russia and the US as well as two offices in Africa. However, there is no consensus on the number and guidelines for opening of new external offices. Since the informal consultation process started during the meeting of the Program and Budget Committee failed to reach a solution, an Ambassador level meeting was convened last night (1 October) to resolve the deadlock. However this meeting failed to arrive at a consensus on the issue. The second meeting of ambassadors is started at 12 noon today (2 October) to resolve the issue. It is learnt that this meeting has failed to resolve the impasse.

There are diverging views on this issue. One set of countries is asking for a set of guidelines for the selection of countries for the opening up of external offices to then make the selection of countries, instead of going ahead with the five countries listed in the budget document. Another set of countries is accepting the five countries listed in the document but demanding a decision on the guidelines to resolve the future requests. A third set of countries is asking for the opening up of external offices in their countries.

Meanwhile, the coordination committee met yesterday and approved the Memorandum of Understanding signed by WIPO with China and Russia to open external offices in those countries.

A document circulated on 1October contains general guiding principles and implementation for the establishment of a small, efficient, strategically located and geographically representative network of external offices. The guiding principles are: transparency of the procedure on setting up of WIPO external offices, rationale for establishing new external offices and their purpose, financial suitability/budget neutrality, geographic aspects/locational aspects, external office's accountability.

There is no consensus on these proposed general guiding principles. The transparency of the procedures on setting up WIPO external offices contains a bracketed text as well as an alternative proposal from the Republic of Iran. Similarly, there is also an alternative proposal from Group B on the rationale for establishing the new external offices.

The same 1 October document also contains the decision with regard to the establishment of external offices in the 2014-15 biennium.

There is also no agreement with regard to the implementation of the guiding principles. The document contains three proposals on this. The first proposal is from the Vice-Chair, which reads "It was decided to immediately apply the general guiding principles to all proposed, existing, and future EOs (External Offices) to the extent applicable, provided that relevant decisions taken by the General Assemblies in the past and including the present one on the matter of EOs will remain in force. It is understood that, in particular, paragraphs (a) 3 and 4 as well as paragraphs (b) to (e) apply to all EOs".

The proposal by the African Group, China and Russian Federation states that "The implementation of the above principles does not have a retroactive impact on the five offices proposed by the Secretariat for the establishment in the 2014 /2015 biennium, as well as those agreed upon during the Assemblies 2013".

The third proposal from the Republic of Korea states "The General Guiding Principles above have been worked out through the Member Driven process. Thus, they shall apply immediately after they are approved by Member States so that the General Assemblies can proceed to deliberate and decide on the establishment of the new Eos without delay".

There are two proposals with regard to the external offices to be established in the next biennium. The first proposal from the Vice-Chair reads, "It was decided that in the biennium of 2014/15, resources would be allocated for establishing two (one for the GRULAC region and another one for India), in addition to the five EOs initially proposed to the PBC".

The second proposal from South Korean states: "the General Assemblies of 2013 also agrees to establish and adequately fund, beginning in the 2014-15 biennium, the new EOs in the locations of the Member States and the regional Group(s) which have explicitly indicated their willingness and intention to host such offices, including China, India, the Republic of Korea, the Russian Federation, the GRULAC region as well as the African region.

In this regard, the General Assemblies will use the General Guiding Principles to decide on the number and locations of the new Eos for the next biennium and beyond".

Another contentious issue is Agenda 30 on theconsideration of the convening of a Diplomatic Conference for the Adoption of a Design Law Treaty. Central European and Baltic States (CEBS), the EU and Group B are pushing for a decision to hold a diplomatic conference to conclude the design law treaty.

Even though the treaty is projected as a procedural law treaty it is a fact that it has implications on the substantive law, particularly on the grace periods, multiple applications and licensing of designs. Hence the African Group and some Asian countries such as India are not supporting the idea of a decision on a Diplomatic Conference. According to these countries, ideally next General Assembly should take a decision on the diplomatic conference.

It is learnt that there are three proposals currently subject to informal negotiations.

The first proposal from CEBS seeks a decision on a diplomatic conference. The second proposal entrusts the decision on diplomatic conference to the next General Assembly. The third proposal moots the idea of a extraordinary session of the Assembly to decide on the diplomatic conference based on the recommendation of the Standing Committee on Trademark, Designs and Geographical Indications (SCT).

It is learnt that the CEBS and Group B are insisting that the Assembly should take a decision on an extraordinary session of the Assembly instead of entrusting the SCT to decide on an extraordinary session.

On agenda item 34 i. e. matters related to Standing Committee on Copyright and Related Rightsthere is an emerging consensus on the language of the decision to work towards a diplomatic conference on a broadcasting treaty and limitations and exceptions to copyrights on libraries. However, during the deliberations the Africa Group demanded the launching of negotiations on treaty exceptions and limitations related to education materials.

During the night session on 1October decision language on the decision on Agenda 30 i. e. governance of WIPO and language on a decision related to the Committee on WIPO Standardswere proposed. However, the President of the Assembly proposed informal consultations in the absence of consensus.

Some of these informal consultations have not started even at 2 pm at the time of writing this article. It is almost certain now that the plenary session cannot be started at the prescheduled time of 3 pm. The general mood is to get ready for a long night session.