TWN Info Service on Intellectual Property Issues (Feb07/11)

27 February 2007

The first meeting of the year on the "Development Agenda" in WIPO took place in Geneva last week, and WIPO members grappled with how to narrow down or make concrete a set of proposals to move the agenda forward.

The PCDA has to deal with 111 proposals on a Development Agenda identified by WIPO members in previous meetings. They are divided into two sets – 40 proposals (known as Annex A) to be discussed at this session and 71 proposals (known as Annex B) at the next meeting in June.

There was wide agreement that the meeting should rationalize and consolidate the 40 proposals. Some delegations also wanted to categorise proposals according to whether they enjoyed agreement.

The proposals for a Development Agenda are categorized in six clusters - Technical Assistance (Cluster A); Norm Setting, Flexibilities, Public Policy and Public Domain (Cluster B); Technology Transfer, Information And Communication Technology and Access to Knowledge (Cluster C); Evaluation and Impact Studies (Cluster D); Institutional Matters including Mandate and Governance (Cluster E); and Other Issues (Cluster F).

The News Report below captures the discussions on Clusters A and B.

Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: +41 (0) 22 908 3551
Email: ssangeeta@myjaring.net

Development meeting discusses norm setting, technical assistance

Geneva, 21 Feb (Sangeeta Shashikant) -- The first meeting of the year on the "Development Agenda" in WIPO is taking place this week in Geneva, and the WIPO members are grappling with how to narrow down or make concrete a set of proposals to move the agenda forward.

The meeting of the Provisional Committee on the WIPO Development Agenda (PCDA) began on Monday with Ambassador Trevor Clarke of Barbados being elected to the chair. Its first days were spent discussing proposals on norm setting and technical assistance.

The PCDA has to deal with 111 proposals on a Development Agenda identified by WIPO members in previous meetings. They are divided into two sets – 40 proposals (known as Annex A) to be discussed at this session and 71 proposals (known as Annex B) at the next meeting in June.

There was wide agreement that the meeting rationalize and consolidate the 40 proposals. Some delegations also wanted to categorise proposals according to whether they enjoyed agreement.

The proposals for a Development Agenda are categorized in six clusters - Technical Assistance (Cluster A); Norm Setting, Flexibilities, Public Policy and Public Domain (Cluster B); Technology Transfer, Information and Communication Technology and Access to Knowledge (Cluster C); Evaluation and Impact Studies (Cluster D); Institutional Matters including Mandate and Governance (Cluster E); and Other Issues (Cluster F).

Ambassador Clarke has identified "Friends of the Chair" to assist him with the process. He said that consultations will be undertaken by the African Group on Cluster A, Kyrgyz Republic on Cluster B, Asian Group and China on Cluster C , Poland (together with Central European and Baltic states) on Cluster D, and Group B (led by Italy) on Cluster E. No group is looking at Cluster F, which in any case only contains one proposal.

He hoped that the discussions on cluster topics will narrow the differences among members, and another document will be produced which will identify which proposals are actionable, which are general principles, and also where there is agreement, where there are gaps and where there is complete disagreement. The task is to come up with recommendations to the WIPO General Assembly.

On Tuesday, an interesting discussion took place on Cluster B issues in Annex A. The Cluster B proposals are as follows: (i) consider the protection of the public domain within WIPO's normative processes; (ii) to ensure member-driven procedures in which the WIPO Secretariat does not play a role in endorsing or supporting particular proposals particularly in the negotiation of international treaties and norms; (iii) to ensure that the norm setting activities recognize the different levels of development of Member States and reflect a balance between benefits and costs of any initiative for developed and developing countries; (iv) to preserve the interest of the society at large and not only those of the IP owners in norm setting activities; (v) to reflect the priorities of all WIPO Members both developed and developing countries in all norm-setting activities.

Brazil said that Cluster B was a core cluster for the proponents of the Development Agenda as it is the substantive work of WIPO that should be more "development oriented".

On the proposal pertaining to protection of the public domain, Brazil said that it was reading it as a "general protection" against the unwarranted encroachment caused by the expansion of IPRs. It said that there has been a broadening of IP through many agreements, which cover new subject matter, and with many countries taking part.

Brazil commented that minimum IP standards have been raised, many of them without justification. Countries have difficulties meeting those standards, thus it is relevant to consider the need to protect the public domain. This proposal was important and actionable.

On the proposal relating to the neutrality of WIPO as an institution, Brazil said that examples by the Secretariat (e.g. the Open Forum held in March 2006, wherein the members selected the speakers and the agenda, and the inclusion in the revised draft basic proposal on broadcasting treaty of the submission of Member states), indicate that the principles of inclusiveness has prevailed.

It however also pointed out that the principle of "inclusiveness" should be adopted across the board for all norm-setting exercises, adding that the principle was actionable.

Brazil also called on the Secretariat to provide technical support to members to prepare papers on the subject of providing flexibilities in norm setting activities.

It was referring to information provided by the Secretariat that a proposal (that norm setting exercises should reflect the different levels of development and the balance between costs and benefits of any initiative) is being implemented by the inclusion in the draft Broadcasting Treaty (being negotiated in WIPO) of proposals by members on public interest clauses, provisions on exceptions and limitations, etc.

Brazil said that these proposals were prepared by Brazil with its own expertise and with the help of NGOs.

Brazil also referred to the information by the Secretariat that a Resolution in the Singapore Treaty on the Law of Trademarks specifically deals with that matter. Brazil called the Resolution a step in the right direction but added that it should have been part of the Singapore treaty itself which contains norms. Differentiation in treatment between developing and developed countries is the kind of treatment it would like to see in norm setting activities in the future, it said.

Brazil advocated that many of the norm-setting proposals should be considered "actionable" and not just a matter relating to principles. On the proposal to "preserve the interests of the society at large", Brazil said this can be an actionable proposal. It said the Secretariat had given as an example of implementation of this proposal how the issue of "limitations and exceptions" had been included in the agenda of WIPO's copyright committee.

Similarly, Brazil said, the proposal "to reflect the priorities of all WIPO members" was actionable as the activities column in the report by the Secretariat show that things have been done.

Brazil stressed that all of the activities that had been reported by the Secretariat as being carried out on norm-setting had occurred after the launch of the Development Agenda initiative. It thus did not share the view that these activities have been part of the practice in WIPO.

It was responding to comments by several developed countries that WIPO has always implemented "development" in its activities.

Brazil looked on positively on the outcome, adding that the recent developments in WIPO on norm-setting had been "provoked" by the development agenda debate. This is welcome but these activities need to be further developed so that it becomes the norm rather than the exception.

Most developing countries were generally supportive of the proposals in Cluster B, but Italy on behalf of Group B warned that "mandatory terminology" was not acceptable. Group B seemed to imply that it would seek to dilute the language of the proposals.

Several members of Group B said that the proposals had to be reworded. Switzerland for example raised issue with the word "ensure" in the proposal "to ensure that the norm setting activities recognize the different levels of development of Member States and reflect a balance between benefits and costs".

Some Group B members were also unhappy with the wording of the proposal "consider the protection of the public domain", saying that the "public domain" by definition could not be protected and that it was not part of the norm setting. Denmark said that it did not see it as a principle for future norm-setting exercises.

Chile, a major supporter of this proposal, explained that if "protection" is not the suitable word, then other words such as "preserve or safeguard" could be used. It also clarified that the proposal was not about the protection of the public domain in the "legal sense". It refers to a balance of rights and that when norms are set they may intrude upon the public domain. For example, technology protection mechanisms had some undesirable effects on the public domain.

Earlier on Tuesday, Cluster A which has 16 proposals on "Technical Assistance and Capacity Building" was discussed.

Brazil said the proposals fell into three categories: (i) those related to funding, (ii) those related to technical assistance (TA) and the provision of TA by the private sector, (iii) proposals containing principles that TA should be demand driven and tailor made.

It sought more information on the nature and kind of advise that WIPO was giving to member states, stressing on the need for transparency and accountability. It also stated that the comments by WIPO on its activities also indicated how the proposals could be made "actionable".

Brazil also questioned proposals on establishing a WIPO Partnership Program database, which seeks to use the internet to connect developing countries' TA needs with donor countries that wish to provide assistance.

Brazil was not willing to support the proposals as they are currently worded and unless there are adequate safeguards (such as on monitoring and supervision), as the proposal is contrary to the idea of making TA more member-driven.

It spoke favourably of the proposal "to make publicly available a roster of consultants for technical assistance", as this would help prevent selling to developing countries solutions that cater to private interests. It said that there was presently no clarity on who were the consultants.

Colombia was also not supportive of the WIPO Partnership Database as it wanted to maintain government oversight over WIPO's technical assistance.

On the same proposal, Algeria (for the African Group) said that it would like more information on the proposal which could be redrafted to meet African needs. It also supported transparency in TA but cautioned that information provided on TA should be subject to the consent of member states as the advice given to member states is confidential.

In general, developing countries showed support for proposals such as "to take into account the different levels of development of various countries in designing, delivering and evaluating TA"; " to establish a code of ethics for the Secretariat, technical assistance staff and consultants"; "to ensure that WIPO TA staff and consultants are fully independent and avoid potential conflicts of interest", "to provide technical cooperation to developing countries, at their request, in order to better understand the interface between IPRs and competition policies".

Italy, on behalf of Group B, did not pronounce its position on the various TA proposals. It only said that it supported in general the proposals as are within the mandate of WIPO adding that it reserved its right on the wording of the proposals.

The Chairman responded, saying that he hoped that the Group would indicate its position early to enable him to deal with the difficulties early enough.

Several Secretariat officials clarified questions raised by Members. They said no external legal experts were used as they wanted to safeguard "neutrality" of the advice given, while consultants were more sourced from national and regional contexts. It also said that it was planning to give concrete examples of advice without infringing confidentiality.

The meeting has before it a working paper prepared by the Chair of the 2006 WIPO General Assembly, Ambassador Enrique Manalo from the Philippines (See SUNS #6190 dated 14 February 2007).

The PCDA accepted the Ambassador's paper as the basis for its work this week.

Earlier, there was some speculation that a document produced at the end of a meeting on the Development Agenda in New Delhi could be presented as a basis for work.

On this issue, India, during the meeting, said that there was a great deal of convergence and understanding shown at the Delhi meeting. It urged moving forward with the substantive discussion, and it does not matter which of the two documents was used as the basis for work, as otherwise the process may be derailed.