TWN
Info Service on Intellectual Property Issues (Sept14/05)
30
September 2014
Third
World Network
WIPO:
Consensus still elusive after days of informal consultations
Geneva,
30 September (K M Gopakumar) – Five days of informal consultations
among Member States at the on-going General Assembly of the World
Intellectual Property Organization (WIPO) has failed to reach consensus
on deciding the future course of action in four key areas.
The contentious areas are the work of the Intergovernmental Committee
on Intellectual Property, Genetic Resources, Traditional Knowledge
and Folklore (IGC), the Standing Committee on Copyrights (SCCR), Design
Law Treaty, and the establishment of WIPO External Offices.
The 46th Session of the WIPO General Assembly is taking
place in Geneva on 22 -30 September.
The fifth day (26 September) witnessed a series of informal consultations
that went on till 9.15 pm in the night in an effort to find consensus
on the IGC and SCCR.
After a brief plenary this morning (30 September), informal consultations
resumed as follows: 10 -11 am for the IGC, 11 am -12 noon for the
SCCR, 12-1 pm for the Design law treaty and 2-3 pm for the External
Offices issue. The second plenary of the day is scheduled for 4 pm.
Intergovernmental Committee on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore (IGC)
The IGC process was initiated in 2000 with the aim to discuss issues
related to intellectual property rights and access and benefit sharing,
including the protection of traditional knowledge and traditional
cultural expressions. In 2009, the WIPO General Assembly gave the
mandate to start text-based negotiations on an international legal
instrument aimed at protecting traditional knowledge, traditional
cultural expressions and genetic resources.
The General Assembly extended the mandate for two times in 2012 and
2013 due to lack of progress caused by essentially a North-South divide
among Member States, with the possibility of taking a decision by
the General Assembly to take stock of the progress and to decide whether
to hold a diplomatic conference. (A diplomatic conference would be
the formal stage of negotiating a treaty.) While most of the developing
countries demand for a decision on the diplomatic conference, developed
countries hold the view that the text is not matured enough to take
such a decision.
Informal consultations which started on 23 September have yet to reach
a consensus among Member States. On 29September two rounds of informal
consultations took place on the IGC. The morning’s informal consultation
(11.30 am to 1 pm) discussed two options.
The first option proposed to hold three sessions of the IGC in 2015
and a diplomatic conference in 2016. It also proposed to entrust the
2015 WIPO General Assembly to decide on the preparatory meetings taking
into account the budgetary process.
The second option proposed to intensify the text based negotiations
in good faith in order to take a decision on holding a diplomatic
conference in 2016 at the WIPO General assembly in 2015. This proposal
also contains the plan of holding three sessions of the IGC in 2015.
It is learned that there was no consensus on both proposals, and that
one of the developed country delegations believed to be the US delegation
even opposed the words “in good faith” in the second proposal.
During the second informal consultation (7.30 to 8 pm) the discussion
was based on a new proposal. The new proposal had three components.
First, it calls for the intensification of the text based negotiations
in order to take a decision at the WIPO General Assembly in 2015 on
whether to hold a diplomatic conference in 2016. This proposal does
not contain the words “in good faith”. Secondly, similar to
the earlier proposals it also proposes three IGC meetings in 2015
including a half-day meeting segment of Ambassadors/senior officials.
Thirdly, it proposes to extend the mandate of the IGC to either the
2016-17 biennium or the end of 2016.
Since the third proposal does not contain any decision with regard
to the diplomatic conference there was no consensus either at the
informal consultation. The informal consultations continue today.
Standing Committee on Copyrights (SCCR)
The informal consultation on the future work program of the SCCR is
also eluding consensus. There are two contentious issues. First
is the decision with regard to holding a diplomatic conference to
conclude a treaty on the protection of broadcasting organisations.
Second is the work towards an appropriate international legal instrument
or instruments (whether a model law, joint recommendation, treaty
and/or other forms), with the target to submit recommendations on
limitations and exceptions for libraries and archives as well as on
educational and research institutions and persons with other disabilities.
There are divergent views among Member States with regard to the future
course of the work program on limitations and exceptions. Some developed
countries would like to confine the SCCR work program only to the
extent of sharing national experiences. Developing countries, on the
other hand, would like to have a work program to finalise legal text.
Therefore certain developing countries suggested text-based
negotiations on limitations and exceptions. This demand is central
to more predictability with regard to access to knowledge especially
in developing countries.
According to some delegates who attended the informal consultations,
during the informal consultations the SCCR chair may propose negotiations
based on last year’s decision. Since the last WIPO General Assembly
did not provide any clear direction for text-based negotiation for
a legal instrument, this would mean a status quo, i.e. a continued
discussion only. The decision reads:
“The WIPO General Assembly:
(i) takes note of the information contained in document WO/GA/43/13;
(ii) takes note of the statements made by delegations at the forty-third
and forty-fourth sessions of the WIPO General Assembly in 2013; and
(iii) requests the Standing Committee on Copyright and Related Rights
to continue its work regarding the issues reported on in that document.”
The proposed draft decision for the Member States to consider at this
session before they went into informal consultations was as follows:
“ … encourage progress on limitations and exceptions consistent with
the recommendations approved by the WIPO General Assembly in 2012,
namely to continue discussions to work towards an appropriate international
legal instrument or instruments (whether model law, joint recommendation,
treaty and/or other forms), with the target to submit recommendations
on limitations and exceptions for libraries and archives as well as
on educational and research institutions and persons with other disabilities
to the WIPO General Assembly in 2015.”
External Offices (EOs)
There is still no consensus with regard to the establishment of EOs,
which is believed to have resulted in the suspension of the WIPO General
Assembly in October 2013. The facilitator circulated two texts within
two hours of intervals. These texts were released after the
informal consultations in the morning of 29 September (10 am to 11.30
am). The informal consultation did not result in a consensus.
The latest text at the time of writing contains seven parts viz. transparency
of procedures and decision making by Member States for the establishment
of new EOs, rationale for EOs, regional activity, financial and budgetary
sustainability, geographic/locational aspects, EOs accountability/reporting,
implementation and review. The document also contains a draft decision
of the WIPO General Assembly.
The draft decision proposes the adoption of the draft principles.
It proposes opening of not more than 2 EOs per biennium 2014-2015,
2016-17, and 2018-19. Further, it proposes opening two EOs in Africa
and the GRULAC region in the 2016-17 biennium, and in Asia and other
region in 2018-19 biennium.
Design Law Treaty
There were no informal consultations on the consideration of the convening
of a Diplomatic Conference for the Adoption of a Design Law Treaty
last week. The Central European and Baltic States (CEBS), the European
Union and Group B (several developed countries) are pushing for a
decision to hold a diplomatic conference to conclude the Design Law
Treaty. The contrast is stark when one considers the resistance of
many of the same countries to convene a diplomatic conference for
treaties of concern and interest to developing countries.
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.
On the evening of 29 September the CEBS and Group B circulated a draft
text for the consideration of Member States.
The draft decision proposes a diplomatic conference for the adoption
of a Design Law Treaty in 2015 with an understanding that the diplomatic
conference would consider the inclusion of an article on technical
assistance. Further it also proposes a preparatory committee
meeting for the diplomatic conference during the 32nd
Session of the Standing Committee on Trademark.
According to a developing country delegate the proposal is unlikely
to fly because the proposal does not include a clear decision to accommodate
the demand of the African Group to include a specific article on technical
assistance in the treaty.
The informal consolations have resumed for today.
