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TWN
Info Service on Intellectual Property Issues (May14/05) WIPO:
No consensus on convening a Designs Law Treaty Geneva, 15 May (Alexandra Bhattacharya) – Member States at the Extraordinary Session of the World Intellectual Property Organization (WIPO) General Assembly could not agree to convene a Diplomatic Conference on a Designs Law Treaty. The issue will be forwarded yet again to the regular session of the WIPO General Assembly that is expected to be held on 22-30 September 2014. The Forty-Fifth (24th Extraordinary) Session of the General Assembly was held on 8-9 May with two agenda items: (i) Appointment of the Director-General; and (ii) Consideration of the Convening of a Diplomatic Conference for the Adoption of a Design Law Treaty. Previously, the 31st session of the WIPO Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT) held in March 2014, had also been unable to recommend the Convening of a Diplomatic Conference for Industrial Designs. The SCT at the end of its session had requested the WIPO General Assembly “to take stock of, and consider the text and progress made and decide whether to convene a diplomatic conference for the adoption of a Design Law Treaty in 2014.” See TWN Info Service on Intellectual Property Issues (Mar14/06) http://www.twn.my/title2/intellectual_property/info.service/2014/ip140306.htm [The draft articles and regulations of the Designs Law Treaty, which have been negotiated in the SCT, are purportedly formalities provisions, which aim to simplify and harmonize industrial designs registration standards. Developing countries have voiced concerns regarding the costs of implementing the procedures, particularly with respect to institutional costs. In this context, a number of developing countries notably the African Group have called for the inclusion of a legally binding article on technical assistance and capacity building in the text of the proposed treaty. The inclusion of an article however, is being resisted by the United States, which has expressed its preference for a resolution which would be of a less binding nature.] The agreed decision of the General Assembly states that: The
WIPO General Assembly: (b) encourages delegations to hold informal consultations prior to the 54th series of meetings of the WIPO Assemblies to take place in September 2014 with a view to resolving pending issues; (c) will at its session in September 2014 decide on whether to convene a diplomatic conference for the adoption of a Design Law as soon as practicable at a venue to be decided. The outcome of the WIPO General Assembly means that the key issue remains with respect to the technical assistance and capacity building provision in the proposed treaty with no agreement reached between the African Group and the United States. This was the result of almost two days of intensive informal consultations. According to the General Assembly Decision, the matter has now been forwarded to the WIPO General Assemblies in September 2014 for resolution. Informal consultations prior to the General Assemblies are also expected. The decision also leaves the venue and importantly, the year of the Diplomatic Conference wide open. Previously, the Chair's text circulated on the first day of the session stated that, “It is agreed that the diplomatic conference will adopt a resolution or an article regarding technical assistance and capacity building for developing countries and LDCs in the implementation of the future Design Law Treaty." This was the position advocated by the U.S. during the last SCT by which the issue of whether the technical assistance provision should be in the form of a treaty article or resolution would be resolved only in the Diplomatic Conference. The outcome of the recently concluded General Assembly clearly shows that the African Group is holding its ground that inclusion of an article on technical assistance is a precondition to a decision to convene the Diplomatic Conference. Another key issue is the venue of the Diplomatic Conference. The previous Chair's draft had stated that the Diplomatic Conference would take place in Geneva in 2014. Interestingly, the decision now states that the Diplomatic Conference would take place at a venue to be decided and does not mention the year, simply noting "as soon as practicable". It is important to note that initially Moscow had offered to host the Diplomatic Conference and according to an observer, the on going geopolitical crisis in Crimea may have been a consideration. Statements on the Designs Law Treaty (DLT) The Chair requested Member States to not make statements on the issue as positions were well known and to send in their statements in writing to the Secretariat. Nevertheless, some delegations took the floor to make statements. Kenya on behalf of the African Group stated that it regretted that “in the end we could not reach an outcome”. It reiterated the position of the Group with regard to having an article on technical assistance and capacity building as part of the draft treaty. Kenya also underlined that this issue should be resolved before the Diplomatic Conference. It explained that resolving the issue prior to the Conference would “guarantee success” during the Conference. It stated that it would continue to remain constructive in the process. Algeria, supporting the statement of the African Group, said that technical assistance was the cornerstone of any WIPO treaty. In this context, obligations for the provision of technical assistance lay with WIPO rather than the Member States. It also called for future informal consultations on the issue to be open-ended and more open and inclusive in the future. Egypt on behalf of the Development Agenda Group emphasized the importance of implementing clusters A on “Technical Assistance and Capacity Building” and B on “Norm-setting, flexibilities, public policy and public domain” of the WIPO Development Agenda Recommendations. In this context it stated that work with respect to the proposed treaty should be “inclusive, member driven and taking into account the different levels of development of countries”. Egypt expressed appreciation for the progress made, whilst underlining that the Group would agree to a Diplomatic Conference only with an integral and legally binding provision on technical assistance and capacity building which would enable developing countries to realize the objectives of the Treaty. The Czech Republic, on behalf of the Group of Central European and Baltic States (CEBS), a key proponent of the Designs Law Treaty, stated that it felt strongly about the agenda item and felt the need to make a statement. It noted the significant progress made on the technical assistance issue during the last SCT session in March and that it attached great importance to the adoption of the DLT. It expressed disappointment regarding the “missed opportunity” to move forward. The Czech Republic underlined that the DLT would provide a “modern, flexible and international framework” in this field. It highlighted that the SCT had already fulfilled its mandate and that any further negotiation at expert level would entail the further “watering down” of the provisions. It stated that users across all regions were held hostage due to our inability to reach compromise”. The European Union stated that it “deeply regretted” that the WIPO General Assembly had once again failed to decide on the Convening of a Diplomatic Conference despite a “clear window of opportunity”. It noted that all delegations had indicated their support for a provision on technical assistance and capacity building to be included in the draft treaty. It added that the current issue was a “single issue of concern for a limited number of delegations”. It urged Member States to uphold the high level of ambition for the “nearly completed work”. Hungary also expressed its “deep regret” regarding the lack of a positive decision to convene a Diplomatic Conference. It stated that the issue was more “than mature enough” for a Diplomatic Conference. It stressed that the harmonization of design law would benefit both developing and developed countries alike and would make it easier for designers to seek design protection in other countries. Greece also stated that the although it was flexible as to the nature of the technical assistance provision in the proposed treaty, preventing a decision on the Diplomatic Conference on the basis of this issue was “unjustified”. WIPO DG Francis Gurry reappointed for second term During the WIPO General Assembly, Mr. Francis Gurry, the current Director-General of WIPO was formally reappointed for a second term (until 2020). This appointment to an extent has been clouded with media reports regarding governance issues and a complaint filed by WIPO Deputy-Director General James Pooley against Mr. Gurry. Previously in its session held on 6-7 March 2014, the WIPO Coordination Committee had decided by consensus to nominate Mr. Francis Gurry as the candidate for appointment to the post of Director-General. The Republic of Korea, in a statement made in the plenary said that it hoped that the “Report of Misconduct” submitted by Deputy Director-General James Pooley would be handled in the General Assembly for procedural clarity, whilst also noting that the election issue was separate from the investigation issue. It urged for the matter to be handled in a transparent manner. Similarly, the United States Mission in Geneva has also issued a media note stating that, “The United States is deeply committed to the principles of transparency and accountability, including whistleblower protections, in all international organizations. We strongly support the call made in the General Assembly meeting today for a full, independent, and external investigation of the entirety of the complaint filed by a WIPO Deputy Director General. We expect this investigation to be implemented promptly and executed expeditiously.” Mr. Francis Gurry in his acceptance speech outlined his vision for the years ahead. He stated that the “fundamental challenge that we face as an organization is to achieve a shared understanding of the contribution and value of intellectual property to economic, social and cultural development”. He stated that the obstacles in the patch to achieving this included “different competitive interests; asymmetries of wealth, opportunity and knowledge; historical and contemporary trust deficits and the reality of the multi-speed and multi-tiered world in which multilateralism, while being the highest expression of inclusiveness and legitimacy, is never the less the slowest solution”. Mr Gurry further noted that in going forward it was necessary for the agenda of the organization to address all side of the multilateral equation and this included the need to address both the high end and the low end of technology. In this context, he noted the need for WIPO to achieve successful outcomes both on broadcasting and on traditional knowledge, traditional cultural expressions and genetic resources. Mr. Gurry also referred to “balance” being an essential feature of multilateralism and the need for geographical balance in the Secretariat. He stated that he was working on developing a better balance in the Secretariat, both geographical and gender, and this would continue to be a priority. He further said that the politics of intellectual property were becoming more challenging as a “consequence of the increased economic value of intangibles and innovation and of the mission of intellectual property of finding the right balance in relation to all the interests that surround innovation in our society.” Statements made in the plenary by regional coordinators and countries congratulating Mr. Francis Gurry were generally favorable with Member States also outlining their priorities for WIPO in the years ahead. Developing countries including the Asia Pacific Group stressed the importance of the promotion of intellectual property as a tool for development, underlining the need to mainstream the 45 Development Agenda Recommendations across all aspects of WIPO’s work. India and Brazil in particular stated that a key priority was the successful conclusion of the work on traditional knowledge, traditional cultural expressions and genetic resources currently being undertaken in the IGC (Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore). The African Group also called on the Secretariat to advance a work program which would advance the interests of both the developing and developed countries and result in “win -win” solutions. The Least Developed Countries (LDC) Group called on WIPO to ensure the participation of the LDCs in the knowledge economy and allowing them to use intellectual property to promote socio-economic development. On the other hand, Group B countries which comprise of developed country Member States emphasized the need to promote and enhance WIPO’s intellectual property services such as the PCT (patent), Madrid (trademark) and Hague (design) systems. In particular, the fact that 90% of WIPO’s income stemmed from fees from global services was highlighted. (Observers note that the dependency of WIPO on essentially private users of the WIPO treaty systems for its income needs to be balanced with strong integration of development and public interests in the work of WIPO.) Group B also referred to the need for “healthy governance” to achieve these goals and for focus on the efforts on transparency and accountability. The CEBS Group also called for transparency in all appointment procedures.
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