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TWN Info Service
on WTO and Trade Issues (Nov06/06)
07 November 2006
DECISIONS OF WIPO GENERAL ASSEMBLY 2006
Below are articles on negotiations that took place and decisions taken
at the recent WIPO General Assemblies held from 22 September to 3 October
2006.
The main issues that were up for decision were 1) work plan for the
WIPO’s Committee on Patents in 2007 2) the launching of a diplomatic
conference on the proposed treaty for the protection of broadcasting
organizations to finalise negotiations and 3) how to proceed with the
Development Agenda initiative.
On the first issue, the Assemblies decided that no meeting of WIPO’s
Standing Committee on the Law of Patent will be held in the coming year.
Instead delegates are invited to submit proposals on the SCP’s work
programme and the General Assembly chairperson Ambassador Enrique Manalo
of the Philippines will conduct informal consultations for the purpose
of discussing the proposals and recommending a work plan for the SCP
to the GA in Sept 2007
On the Development Agenda, the WIPO Members agreed that the issue will
continue to be discussed for at least another year in the existing Provisional
Committee on Proposals Related to a WIPO Development Agenda (PCDA).
All the 111 proposals on the table will be discussed, with a batch of
40 proposals discussed at the first meeting and the remainder in the
second. The proposals will also be "streamlined", with the
Chair of the General Assembly responsible for consulting members and
producing initial documents.
On the proposed broadcasting protection treaty, the convening of a Diplomatic
Conference (for final negotiations and conclusion of the treaty) has
been postponed to November-December 2007.
Two meetings of WIPO's Copyright Committee will be held in January and
June to discuss and revise the current treaty draft. The decision says
that the Diplomatic Conference will be convened if agreement is reached
on amending the present draft of the proposed treaty to reflect a signal-based
approach, the objectives, specific scope and object of protection of
the proposed treaty.
For more information on the General Assembly discussions and decisions,
see the news reports below.
Also for detailed reporting on discussions that took place in each WIPO
Committee in the last two years, please see http://www.twnside.org.sg/IP_wipo.htm
Best Wishes
Sangeeta Shashikant
Third World Network
Tel: +41 (0) 22 908 3550
Fax: +41(0) 22 908 3551
Email: ssangeeta@myjaring.net
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SUNS #6111 TUESDAY 3 OCTOBER 2006
DECISIONS TAKEN ON DEVELOPMENT AGENDA, PATENTS, BROADCASTING
Geneva, 2 Oct (Sangeeta Shashikant)
-- The World Intellectual Property Organisation (WIPO) has adopted decisions
on how to proceed on three important issues that have been pre-occupying
its General Assembly in the past week.
Agreement was reached on how to proceed with WIPO's work on the Development
Agenda initiative, on patents, and on the proposed broadcasting treaty.
On WIPO's patents work, the decision reflects the deep and continuing
impasse on how to proceed. In the decision, no meeting of WIPO's Standing
Committee on the Law of Patents (SCP) is scheduled in the coming year.
Instead, delegates are invited to submit proposals on the SCP's work
programme and the General Assembly chairperson, Ambassador Enrique Manalo
of the Philippines, will conduct informal consultations for the purpose
of discussing the proposals and recommending a work plan for the SCP
to the General Assembly in September 2007.
This extremely minimalist programme means that the negotiations in the
SCP regarding the Substantive Patent Law Treaty (SPLT) are put on hold.
There have been very deep divisions, on North-South lines, in the past
two years on the scope, content and process of the SPLT.
On the Development Agenda, the WIPO Members agreed that the issue will
continue to be discussed for at least another year in the existing Provisional
Committee on Proposals Related to a WIPO Development Agenda (PCDA).
All the 111 proposals on the table will be discussed, with a batch of
40 proposals discussed at the first meeting and the remainder in the
second.
The proposals will also be "streamlined", with the Chair of
the General Assembly responsible for consulting members and producing
initial documents.
On the proposed broadcasting protection treaty, the convening of a Diplomatic
Conference (for final negotiations and conclusion of the treaty) has
been postponed to November-December 2007.
Two meetings of WIPO's Copyright Committee will be held in January and
June to discuss and revise the current treaty draft. The decision says
that the Diplomatic Conference will be convened if agreement is reached
on amending the present draft of the proposed treaty to reflect a signal-based
approach, the objectives, specific scope and object of protection of
the proposed treaty.
This leaves open the possibility that the Diplomatic Conference may
not be convened if there is no agreement.
A delegate from the Group of Friends of Development (GFOD) commenting
on the overall outcome of the GA, said that the most "substantive
and significant" decision of the General Assembly, for developing
countries, is on the Development Agenda.
The delegate added that previously Members would be talking about patent
harmonisation but at this General Assembly, the issue of "patent
harmonisation is out".
The three decisions were adopted on the morning of Monday (2 October),
following negotiations last week that stretched into last Saturday afternoon.
The decision on the Development Agenda states that: "The General
Assembly reviewed the positive discussions during the two sessions of
the Provisional Committee on Proposals Related to a WIPO Development
Agenda (PCDA) in February and June 2006, emphasized the need to continue
discussions on the proposals submitted and placed in the six clusters
during the IIM/PCDA process, and decided as follows:"
-- To renew the mandate of the PCDA for another period of one year.
-- The PCDA will hold two 5-day sessions, in a manner that allows for
structured in-depth discussions, on all 111 proposals made so far, during
the sessions of the IIM and PCDA in 2005 and 2006 respectively, taking
into account the decision of the 2005 General Assembly, on the deadline
for submission of new proposals.
-- As done during the sessions of the PCDA in 2006, WIPO will provide
financing for the participation of representatives from developing countries
including LDCs as well as from countries with economies in transition,
to attend the meetings of the PCDA.
-- The first session of the PCDA in 2007 will consider the proposals
attached in Annex A. The second session of the PCDA in 2007 will consider
the proposals as attached in Annex B.
-- In order to facilitate the task and streamline the process for detailed
examination of all proposals in an inclusive manner, the PCDA should
undertake an exercise:
(a) to narrow down the proposals, in order to ensure that there is no
repetition or duplication;
(b) to separate the proposals which are actionable, from those which
are declarations of general principles and objectives; and
( c) to note those proposals which relate to existing activities in
WIPO and those which do not.
-- In this regard, the Chair of the General Assembly will, in consultation
with Member States, produce initial working documents.
-- The PCDA will report to the 2007 General Assembly, with recommendations
for action on the agreed proposals, and on a framework for continuing
to address, and where possible to move forward, on the other proposals
following the 2007 General Assembly.
-- In the interim, and without prejudice to the provision of technical
assistance, the PCIPD will cease to exist.
Annex A contains the 40 proposals listed in a paper presented by the
Chair of the PCDA Ambassador Rigoberto Gauto Vielman of Paraguay at
the last PCDA (and when rejected by several members was adopted by the
Kyrgyz Republic).
Annex B contains the remaining 71 proposals.
The decision on the work-plan on patents that was adopted states that
"delegations may submit, by December 2006, proposals for the work
program of the Standing Committee on the Law of Patents (SCP) including
proposals on ways forward or approaches". Then "proposals
will be circulated in consolidated form to all Member States".
It further states that "the Chair of the General Assembly will
conduct informal consultations in the first half of 2007 for the purpose
of discussing the proposals and recommending a work plan for the SCP
to the General Assembly in September 2007.
"In this regard, the Chair will decide the form of the consultations,
which shall be inclusive, and whether it is desirable to hold informal
consultations in a meeting of all member States."
Finally, "the General Assembly in September 2007 will consider
the results of the consultations with a view to establishing a work
plan for the SCP for 2008 and 2009".
Of the three issues, the Development Agenda item had proved the most
difficult to resolve. The difficulty was compounded when Group B (comprising
developed countries) submitted a controversial text at a very late stage
(i. e. on Friday afternoon).
The Chair then convened closed-door consultations with a few delegations,
including the US, Brazil, Argentina (coordinator of the Group of Friends
of Development), Indonesia (coordinator of the Asian Group), and Nigeria
(coordinator of the African Group), on Friday evening and Saturday morning.
The Group B proposal made significant changes to the draft text proposed
by the Chair of the Assembly.
The essential elements of the Chair's text were: (I) renewal of the
PCDA mandate for another year; (ii) the holding of either two or three
sessions on proposals made so far on the Development Agenda; (iii) assisting
countries to finance their participation; (iv) tasking the PCDA to undertake
(a) exercise of narrowing down the proposals to ensure that there is
no repetition or duplication, (b) separating the proposals which are
practicable and actionable from those which are declarations of general
principles and objectives, and ( c) identifying the proposals which
are already within the mandate and programs of WIPO and suggest how
they can be better integrated and made more effective in the work of
those programs; (v) recommending concrete proposals to the 2007 GA with
specific recommendations for concrete action on the proposals on which
there is general agreement to move forward and on the future process
regarding the other proposals; and (vi) in the interim the PCIPD will!
cease to exist.
Group B's text proposed to delete elements (I), (ii) and iv ( c). It
proposed the convening of a meeting in early 2007 to narrow down the
proposals to ensure that there is no repetition or duplication and separating
the proposals which are practicable and actionable from those which
are declarations of general principles and objectives. It added that
to facilitate this, the "International Bureau (WIPO Secretariat)
under the direction of the Chair will produce initial working documents".
If there is agreement during the first meeting, the "PCDA shall
convene another session to further examine all the propositions, dedicating
half of the session to propositions on which consensus could emerge
in the short term and the other half of the session to propositions
that require further in-depth discussion".
It further proposed that the "PCDA would report to the 2007 General
Assembly with specific recommendations - that identify the proposals
which are already within the mandate and programs of WIPO and suggest
how they can be better integrated and made more effective in the work
of those WIPO programs"; "concrete action of the proposals
on which there is general agreement to move forward and the future process
regarding the other proposals".
Many developing country delegates were not happy with the text proposed
by Group B. During the small group consultations with the Chair, several
countries insisted that the text state clearly that the mandate is to
be renewed.
The decision to discuss in the first PCDA the 40 proposals in the paper
by the Kyrgyz Republic and the remaining proposals in the second PCDA
was a compromise, as Group B wanted to proceed on the 40 proposals while
sidelining the proposals of the Group of Friends of Development, many
of which are not found in the Kyrgyz paper. The GFOD, on the other hand,
wanted all 111 proposals to be discussed and to be treated on an equal
footing.
Another contentious issue was who should take the responsibility for
preparing the initial working documents for the PCDA. During the consultations,
some delegations were hesitant to leave the preparation of the working
documents for the PCDA meetings solely to the Secretariat. As a result,
the task has fallen onto the Chair of the Assembly to prepare the initial
working documents in consultation with Member States.
The distrust that many WIPO Members have in the Secretariat arises from
their perception that the Secretariat is not "neutral". On
several previous occasions, the Secretariat has been known to promote
certain agendas that it sees is in its interest.
During the open-ended informal consultations, there was also debate
over what "practicable" and "actionable" means.
There was general agreement during the informal consultation that the
word "practicable" should be deleted.
A delegation privately commented that WIPO is actually already doing
many of the items mentioned in the proposals and as such there is no
need for such proposals. This was perhaps the rationale behind element
(iv) ( c) in the Chair's text.
However, some other delegations saw this as an attempt to remove many
of the 111 proposals on the excuse that the WIPO Secretariat is actually
already implementing those proposals and as such not much needs to be
done, and that only suggestions are needed to better integrate and make
them more effective.
Thus, as a compromise the adopted decision only states that the PCDA
is to "note those proposals which relate to existing activities
in WIPO and which do not".
The adopted decision also states that the PCDA is to report to the 2007
GA with recommendations for action on the "agreed" proposals.
This term is important as it expressly states that "recommendations
for action" will only be made on proposals that are "agreed",
as opposed to "on which there is general agreement", found
in the text proposed by the Chair and Group B.
Regarding WIPO's work plan on patents, given the inability to break
the deep impasse in the past few years on formulating a work plan on
the SCP, the WIPO Members generally felt that to convene a SCP session
in the coming year would be futile.
In fact, several developed countries felt that it was premature to proceed
with any meetings (formal or informal) of the SCP. They were referring
to the original draft text proposed by the Chair, Ambassador Enrique
Manalo of Philippines, which had the additional step of "an informal
session of the SCP" to be held in the first half of 2007.
A developed-country delegation said during an informal consultation
on patents that it was not interested in "holding meetings for
the sake of having meetings."
This led to the substitution of that paragraph. The Chair suggested
that he would conduct the informal consultations after the submission
of proposals in December 2006. He added that following the informal
consultations, he will decide whether an informal SCP session should
be convened. As there was no objection, this approach was taken in the
decision on the work plan of the SCP.
(The decision on the broadcasting treaty is reported on in a separate
article.)
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SUNS #6111 TUESDAY 3 OCTOBER 2006
SOME DOUBTS ON BROADCAST TREATY AFTER ASSEMBLY DECISION
Geneva, 2 Oct (Sangeeta Shashikant) -- The WIPO General Assembly has
adopted a decision on the protection of broadcasting organizations which
goes a few steps backwards on negotiating and finalizing a new treaty
on the issue.
The decision adopted on 2 October confirmed an earlier proposal (made
by WIPO's copyright committee) that a diplomatic conference would be
convened, aimed at finalizing and concluding the treaty.
But it significantly postponed the date of the diplomatic conference
to 19 November-7 December 2007, instead of the proposed 11 July-1 August
2007.
This means that the next General Assembly (the supreme decision-making
body of WIPO) could still consider the issue as to whether to hold the
conference.
More importantly, the 2 October decision mandates that two other sessions
of the copyright committee be held in the year ahead. One of their tasks
is to amend crucial parts of the latest draft of the treaty, and the
diplomatic conference will be convened only if an agreement on the amendments
is achieved.
There is thus a real possibility that the diplomatic conference will
not be convened, or that if it is it would be on a significantly different
basis than what seemed to have been approved only a fortnight ago at
the last meeting of the copyright committee.
This rather dramatic change has been due to the discontent that several
developing countries had felt about the conclusions of the copyright
committee's last meeting in September, their serious doubts about the
desirability of the broadcasting treaty along the lines envisaged, and
more recently to an apparent change of view by the United States (from
supporting a diplomatic conference to being reluctant).
The present situation appears very fluid and the prospects of finalizing
the treaty has become cloudy, given the conditions set out before the
diplomatic conference can be convened.
Several NGOs that have opposed the latest draft of the treaty on the
grounds that it went against the public interest and adversely affected
access of the public, especially in developing countries, to knowledge,
welcomed the sudden shift in the situation.
A representative from a US-based NGO Consumer Project on Technology
said that the General Assembly "corrected a mistake made two weeks
ago" (referring to the recommendation of the 15th SCCR). The representative
added that "it shows that there are some problems with the way
the SCCR is run and hopefully, the WIPO leadership will get the hint."
The General Assembly's 2 October decision varies the recommendation
made by the Standing Committee on Copyright and Related Rights (SCCR)
to the GA at its 15th session held on 11- 13 September 2006.
The SCCR recommended the convening of a diplomatic conference on 11
July-1 August 2007 with the Revised Draft Basic Proposal (SCCR/15/2)
being the main negotiating text for the conference. (See SUNS #6099,
15 September 2006).
According to the 2 October decision, the GA approves the convening of
the diplomatic conference on 19 November-7 December 2007 under the "conditions
set out".
It states that "the objective of this Conference is to negotiate
and conclude a WIPO treaty on the protection of broadcasting organizations,
including cablecasting organizations. The scope of the treaty will be
confined to the protection of broadcasting and cablecasting organizations
in the traditional sense".
It adds that the Revised Draft Basic Proposal (Document SCCR/15/2) will
constitute the Basic Proposal, with the understanding that Member States
may make proposals at the Conference.
Also, there will be a meeting of a preparatory committee in June 2007
to prepare the conference's modalities and rules of procedure.
The conditions set out for the conference are that two special sessions
of the SCCR "to clarify the outstanding issues" will be convened
in January and June 2007.
It is understood that the "sessions of the SCCR should aim to agree
and finalize, on a signal-based approach, the objectives, specific scope
and object of protection with a view to submitting to the Diplomatic
Conference a revised basic proposal, which will amend the agreed relevant
parts of the Revised Draft Basic Proposal" (SCCR/15/2).
The Decision adds that "the Diplomatic Conference will be convened
if such agreement is achieved", and "if no such agreement
is achieved, all further discussions will be based on Document SCCR/15/2".
The recommendation of the SCCR is being amended following concerns expressed
by several delegations in particular India, Iran, Indonesia, Chile,
Canada, Uruguay and the US that the draft text SCCR/15/2 that is supposed
to be the basis for negotiations at the Diplomatic Conference did not
command sufficient consensus to guarantee a successful conference.
The GA on 2 October morning debated the draft decision. Mexico said
it was not the best solution but it would not oppose the consensus.
India said that while it was inclined to go along with the draft decision,
it was of the view that there was a third scenario that had not been
included in the decision i. e. if there is "partial agreement"
by the second SCCR, the basis of discussion would be the Revised Draft
Basic Proposal SCCR 15/2 as amended to the extent agreed to by Members
during the SCCR meetings.
India was referring to the inclusion in the draft decision the sentences
"The Diplomatic Conference will be convened if such agreement is
achieved" (the first scenario, proposed by the US) and "If
no such agreement is achieved, all further discussions will be based
on Document SCCR 15/2" (the second scenario, proposed by Brazil).
Outside the meeting, an Indian delegate explained that the third scenario
i.e. that of "partial agreement", would likely emerge in the
second SCCR meeting and that it is why it wanted to place its statement
on the record.
However, some delegations would like certainty that if no agreement
is reached, discussions will be based on "Document SCCR 15/2",
because that document contains all the alternative proposals proposed
by developing countries.
This outcome was only achieved after many meetings. There is some worry
that in the process of the SCCR discussions (after the GA), several
of these proposals will be dropped off and that if there is no agreement,
then discussions could continue on the basis of a text that does not
contain these alternative proposals.
Some delegations also indicated privately that the fact that the GA
decided on 19 Nov-7 Dec 2007 as the new dates for the diplomatic conference
would give delegations an opportunity to raise issues pertaining to
the convening of the conference, if needed, at the 2007 General Assembly
(usually held in September).
This opportunity is important to some delegations as they fear that
even if there is little agreement on the draft text by the second SCCR,
there will nevertheless be attempts to push forward for a diplomatic
conference.
This is what many delegations and observers say happened at the last
SCCR meeting held in early September. At that meeting, despite the views
expressed by several member states that it was premature to convene
the diplomatic conference, the Chair of the SCCR, Jukka Liedes of Finland,
steamrolled over these objections and pushed for a recommendation from
the SCCR to convene a diplomatic conference.
The GA decision also addresses several concerns raised by developing
countries in previous SCCR meetings. In response to concerns that the
current draft text SCCR/15/2 contains provisions that goes beyond just
dealing with the problem of signal, piracy, the decision specifies clearly
that the sessions of the SCCR "should aim to agree and finalise"
a text that takes a "signal-based approach".
In addition, on several occasions in the past, the problem of lack of
clarity or consensus on what are the objectives, specific scope and
object of protection of the proposed treaty have been raised. In this
regard the draft text tasks the SCCR sessions next year to agree on
these important issues, before the diplomatic conference can be convened.
The Decision suggests that if no agreement is reached on these matters,
the diplomatic conference will not be held.
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SUNS #6109 FRIDAY 29 SEPTEMBER 2006
DIPLOMATIC CONFERENCE ON BROADCAST TREATY PREMATURE
Geneva, 28 Sep (Sangeeta Shashikant) -- Several developing countries
cautioned against approving the recommendations of the WIPO Standing
Committee on Copyright and Related Rights (SCCR) to convene a Diplomatic
Conference on the protection of broadcasting and cablecasting organizations
during discussions on this agenda item on Wednesday at the WIPO General
Assembly.
These developing countries called for the continuation of discussions
in order to reduce the currently wide disagreements over the draft text
that is to be the basis for discussions at the Diplomatic Conference.
The United States, a major proponent of the proposed treaty, was actually
the first to proclaim that a Diplomatic Conference was neither "timely
nor appropriate", as the text is not sufficiently stable to be
considered as a basic proposal for the conference.
Thereafter, India, Iran, Indonesia, Chile, Canada and Uruguay took the
view that the draft text that will be the basis for discussion at the
Diplomatic Conference did not command sufficient consensus to guarantee
a successful conference.
On the two other issues of the work plan for WIPO's Standing Committee
on Patents (SCP) in respect of the Substantive Patent Law Treaty (SPLT),
and the direction and future of the Development Agenda initiative, as
anticipated, there was no agreement among Members during the debate
on these issues.
Informal consultations are being conducted on all the three abovementioned
issues. The first round of informal consultations on the Development
Agenda by the Chairman of the General Assembly (GA), Ambassador Enrique
Manalo of the Philippines, took place on Wednesday afternoon.
During the discussions on the work of the Intergovernmental Committee
on Intellectual Property, Traditional Knowledge and Folklore (IGC),
developing countries such as Malaysia, India, Indonesia, Bolivia, China,
Kenya, South Africa, Algeria, and Brazil stressed the need for the work
at the IGC to be accelerated and concluded. Several of these delegations
also stressed the importance of having an international legally-binding
instrument to protect traditional knowledge, traditional cultural expressions
and genetic resources from misappropriation.
However, the EC as well as other developed countries such as the US
and Japan, did not appear keen on such an instrument and merely reiterated
that they recognized the importance of this issue.
The recommendation on the convening of a Diplomatic Conference from
11 July- 1August 2007 was made at the 15th Session of the SCCR in early
September - the objective being to negotiate and conclude a WIPO treaty
on the protection of broadcasting organizations, including cablecasting
organizations. According to the recommendation before the GA, the draft
text that will be the basis for discussion will be the "Revised
Draft Basic Proposal SCCR/15/2".
The Committee also recommended that a special two-day meeting be held
to clarify outstanding issues in conjunction with a preparatory meeting
that will be convened in January to prepare for the necessary modalities
of the Diplomatic Conference.
During the debate on Wednesday, the US highlighted the wide differences
among Members by pointing to the fact that two years ago the text was
89 pages long with 28 alternatives, but currently the text is 108 pages
long with 47 alternatives.
The US expressed concern that the conference would not be successful,
as much had to be resolved. More meetings were needed to resolve the
outstanding issues, the US said, adding that they will not seek to include
webcasting or new transmission services, as these will be dealt with
on a separate track. The US also said that the Copyright Committee had
taken premature action, which it could not support as there is no consensus.
India said that although the issues of webcasting and simulcasting have
been excluded from the scope, all other issues remain unresolved. It
added that while all the building blocks are there for a successful
Diplomatic Conference, there are also stumbling blocks in the text as
it stands today as there is no consensus on the broad contours. India
urged for more formal meetings of the Copyright Committee to sort out
outstanding issues before moving forward to a Diplomatic Conference.
In relation to the special two-day meeting, India said that it needed
clarification on the validity of this meeting - if it is an informal
meeting, it was not sure of the impact of the conclusions drawn at that
meeting on the Diplomatic Conference.
Chile also said that the "the text simply reflects the fact that
there is no consensus on anything". It also said that there were
doubts among delegations about the proposed treaty. Some delegations
had called for development impact studies.
Chile supported further meetings of the Copyright Committee and said
that it preferred that the 2008 GA recommend the convening of a Diplomatic
Conference. It also said that the Committee should also discuss other
issues such as the proposal on exceptions and limitations put forward
by its delegation.
Nigeria, on behalf of the African Group, said that the Draft Basic Proposal
had to be cleaned up to remove ambiguities and to reduce as many alternative
articles as possible to reduce the risk of failure. It also said that
in principle it supported having a Diplomatic Conference.
The statement of the African Group was not clear in relation to whether
it is supporting or opposing the recommendation on the convening of
the Diplomatic Conference.
Kenya, a member of the African Group, said that while there are issues
that needed to be thrashed out, this can be done in the meeting being
held before the Diplomatic Conference. It thus supported the convening
of a Diplomatic Conference.
Another member of the same group, South Africa, said that there was
much that needed to be done before having a Diplomatic Conference.
The League of Arab States, an intergovernmental organization and an
observer at the meeting, took the floor and appeared to speak on behalf
of the Arab States. It took the position that the Arab countries did
not oppose the convening of a Diplomatic Conference. However, it is
not clear whether the general statement was in relation to the recommendation
before the Assembly.
The EC supported the recommendation before the GA on the basis that
there were many building blocks to a successful Diplomatic Conference.
The other countries that similarly favoured approving the recommendation
are Japan, Nicaragua, Croatia (on behalf of the Central European and
Baltic States), El Salvador, Mexico, Norway, Mongolia, Krgystan, Ukraine,
Azerbaijan, Russian Federation, Singapore, Morocco, Algeria and Macedonia.
The Chairman of the General Assembly requested the assistance of the
Chairman of the Copyright Committee, Jukka Liedes of Finland, to conduct
informal consultations on this issue with the different delegations.
Following this instruction, the Chair of the Copyright Committee released
on Thursday morning a draft decision following his informal consultations,
and this draft is expected to be the basis for broader informal discussions
later on Thursday.
The main differences between the recommendation of the Committee and
the draft decision are: the draft decision states that the GA "approves"
the convening of a Diplomatic Conference; the draft changes the date
of the Diplomatic Conference to November 19-December 7, 2007; and the
date of the meeting of the preparatory committee to June 2007.
In addition, the draft decision states that the holding of the Diplomatic
Conference is subject to conditions that two special sessions of the
SCCR (instead of the special two-day meeting), "to clarify the
outstanding issues, will be convened, the first one in January 2007,
and the second one in June 2007 in conjunction with the meeting of the
preparatory committee".
The draft decision adds that "it is understood that the session
of the SCCR should aim to agree and finalise, on a signal-based approach,
the objectives, specific scope and object of protection with a view
to submitting to the Diplomatic Conference a revised basic proposal,
which will amend the relevant parts of the Revised Draft Basic proposal..."
Discussions on the Development Agenda came up late Tuesday evening,
and different approaches were proposed by delegations on how to take
the initiative forward.
The Group of Friends of Development (GFOD) in their statement on Monday
had already called for the renewal of the mandate of the Provisional
Committee (PCDA) for another two years, until 2008, with three meetings
being held between now and the 2007 GA. They had said that the renewed
PCDA would be in charge of presenting to the next GA a substantial draft
recommendation on a first set of action points and a framework for the
way forward. In the second year, the PCDA would work out the remaining
proposals into another draft recommendation to be adopted by the 2008
GA.
On Tuesday, the Ambassador of Argentina Alberto Dumont, on behalf of
GFOD, expressed disappointment that the exercise had not been as fruitful
as expected. He stressed that all delegations had highlighted the importance
of the development issue.
He also said that they had tried to simplify the exercise through Doc.
PCDA/2/2 dated 23 June 2006, which he felt was a good basis for carrying
through the process. He added that he understood the Group B's (developed
countries) view that there was need for clarity on the procedure. The
GFOD was open to consultations on how to make progress.
The paper PCDA/2/2 basically summarizes many of the proposals in earlier
GFOD papers, but this time in the form of a Decision that the Committee
would send on as recommendations to the General Assembly. It also incorporates
some proposals made by other delegations.
The Kyrgyz Republic had also submitted a draft decision at the 2nd PCDA
meeting. The draft decision basically reflects the paper presented by
the Chairman of the PCDA, Ambassador Rigoberto Gauto Vielman of Paraguay,
which has been rejected by many delegations. (See SUNS #6105 dated 25
September 2006.)
Some delegations that were supportive of this approach are those of
Group B, Central European and the Baltic States, and Mexico.
The Chair of the General Assembly, summarizing the various interventions,
said that it was clear that all delegations wanted a continuation of
the process, with slight nuances on how to continue and in what form.
He said there were some elements that needed to be considered and decided
on, i. e. appropriate forum, the need to have tangible results, appropriate
time frame and the process that will have to be adopted to provide tangible
results.
When pushed by the Kyrgyz Republic as to which draft decision the Chair
will use as a basis for consultations, the Chair said that he would
conduct open-ended informal consultations to have intensive discussions
on the elements and see whether he could come up with an agreed text.
On Wednesday afternoon, such consultations were held. In the consultations,
the African Group presented a draft resolution, which according to some
of the African delegates, was received favorably by many other delegations.
The draft resolution is along the lines of the Group's position presented
in its general statement (See SUNS #6107 dated 27 September 2006)
In respect of the work-plan for the SCP, delegations held on to their
known positions.
Switzerland, on behalf of Group B, said that it continued to believe
that a limited work plan was the way forward, i. e. addressing the "initial
package of priority items"- the "definition of prior art,
grace period, novelty and non obviousness/inventive step".
Japan added that much of WIPO's revenue comes from the fees of the patent
cooperation system and thus it is imperative to respond to the needs
of the users.
Argentina, on behalf of the GFOD, had already put forward their position
on the first day of the Assembly - that the work plan in respect of
the SPLT should also discuss items of interest to developing countries
such as development and policy space for flexibilities; exclusions from
patentability; exceptions to patent rights; anti-competitive practices;
disclosure of origin, prior informed consent and benefit-sharing; effective
mechanisms to challenge the validity of patents; sufficiency of disclosure;
transfer of technology; and alternative models to promote innovation,
on an equal footing with the four issues proposed by Group B.
During the debate on the work plan, Argentina said that perhaps the
road to harmonisation is not something Members wish to do and there
might be other topics that the SCP can deal with.
The UK Ambassador who was also the Chair at the informal SCP session
held earlier this year said that there were basically two camps, those
who wanted to prioritise the work and those who felt that all issues
have to be treated on an equal footing.
Brazil said that WIPO is not a multilateral patent system. As a UN agency,
development should be the core objective of the organization. It added
that harmonisation cannot take place at the expense of the interests
of the developing countries, which make up the majority of the membership.
Brazil said that the Open Forum on the SPLT raised many issues that
must be mainstreamed in the SCP. It also said that there is a growing
critique of the patent system among academics, in government bodies,
think tanks, intergovernmental organisations, non-governmental organizations
and even in institutions integrated by developed countries such as the
OECD. This reality should not be ignored by the SCP, it said.
A way of including this critique has to be found so that a more profound
debate on those issues can be held. It also stressed the need for impact
assessments to underpin the harmonisation process, adding that norm
setting cannot take place blindly without such studies. Brazil further
said that for developing countries, the issue is the quality of life
of the people and patents should not erode that quality of life.
China agreed that discussions should focus on selected items but these
items should deal with the concerns of developed and developing countries.
It added that discussion at least on disclosure in patent applications
and genetic resources should be included.
Kenya, Bolivia, Indonesia, Iran, Ecuador, Cuba, Pakistan and Chile were
among some of the developing countries that were against a limited work
plan.
India took a similar position, saying that Members cannot lose sight
of the fact that harmonisation impacts access to technology, public
health etc. It suggested a new and "holistic" approach with
a breath of fresh air, if the process is to move forward.
The US reiterated its position that WIPO's mandate is to try to improve
the IP system, streamline it and promote development. Many of the topics
suggested, for example, anti-competitive practices, and alternative
models of promoting innovation are beyond the expertise of the mandate
of the SCP and WIPO. It also said that it could not support a work programme
that will not facilitate consensus. It added that if there is no agreement
on the work plan, then perhaps it was most prudent to revert to the
work plan at the next GA.
The Chair, in noting the impasse, said that he intended to conduct informal
consultations on the matter, and that he will come up with a working
text for the consultations.
----------------------------------------------------------------------------------------
SUNS #6107 WEDNESDAY 27 SEPTEMBER 2006
WIPO GENERAL ASSEMBLIES BEGIN
Geneva, 26 Sep (Sangeeta Shashikant) -- The meetings of the WIPO General
Assembly (GA) began on Monday (25 September), with Members generally
proclaiming their positions on issues that are expected to be contentious
and to dominate much of the debate at this current annual session.
The three areas of most contention that are up for decision at the GA
are the work plan for WIPO's Standing Committee on Patents (SCP) in
respect of the Substantive Patent Law Treaty (SPLT); the direction and
future of the Development Agenda initiative; and approving the recommendation
of the Copyright Committee to convene a diplomatic conference to finalize
negotiations on a new treaty on the protection of broadcasting and cablecasting
organizations (See SUNS #6105 dated 25 September 2006.)
The statements made by the Group of Friends of Development (GFOD), the
Asian Group, the African Group and Group B (comprising developed countries)
give an indication of the positions that they will take on these contentious
issues when in-depth discussions begin later in the week.
On the first issue, the statements of the GFOD, the African Group and
the Asian Group suggest that they will not accept any decision to move
forward with discussions in the SCP on the SPLT, if their issues and
concerns are not taken into account.
The GFOD is comprised of Argentina, Bolivia, Brazil, Cuba, Dominican
Republic, Ecuador, Egypt, Iran, Kenya, Peru, South Africa, Sierra Leone,
Tanzania, Uruguay, and Venezuela.
Switzerland, on behalf of Group B, said that it continues to believe
that a limited work-plan (i. e. addressing the "initial package
of priority items" - the "definition of prior art, grace period,
novelty and non obviousness/ inventive step") is the way forward
for the SCP.
The GFOD, the African Group and the Asian Group called for discussions
on the Development Agenda that have been taking place in the last year
in the Provisional Committee (PCDA) to continue and for the committee's
mandate to be renewed, and presented suggestions on how to move forward
with the initiative. The GFOD, initiators of the Development Agenda,
stressed that the best approach would be "an inclusive process
in which all positions are taken on board, and seriously debated on
substance and merit".
Glaudine Mtshali, the Ambassador of South Africa, a member of the GFOD
and the African Group, made clear that to her delegation the Development
Agenda is more than just technical assistance. She said that norm-setting
is at the "core".
Group B, on the other hand, expressed support for the paper presented
by the Chair of the PCDA Ambassador Rigoberto Gauto Vielman of Paraguay
saying that it was a "workable" and "balanced" solution
and a way forward for discussion. However, the paper on the way forward
presented by the Chair has been rejected several times in the PCDA meetings
by many developing countries, including the GFOD, on the basis that
the paper excludes many items that are considered to form the core development
agenda for WIPO. The paper has since then been adopted by the Republic
of Krgystan and presented as its own proposal.
On the issue of convening a diplomatic conference, the GFOD and the
African Group stressed the importance of including safeguards to protect
the public interest and that any text that forms the basis for discussions
during the diplomatic conference should not include webcasting and simulcasting.
The Brazilian Minister of Culture, Gilberto Gil, who is also a renowned
musician, on this issue cautioned that if the Assembly confirms the
convening of a diplomatic conference, WIPO Members are consciously assuming
the risk of another failure at WIPO (as there are many issues pending),
repeating the outcome of the diplomatic conference of the year 2000
that was meant to approve a new audiovisual treaty.
Minister Gil also raised several concerns pertaining to the current
IP trends that were also echoed by several other developing-country
delegations. He said that in the face of the widening scope of intellectual
property, there is no more space to keep discussing the subject based
on simplifications, reductionisms and dogmas. "If we do not engage
in a serious and honest debate about the direction that IP protection
should take, we risk endangering development in the majority of countries
and jeopardizing access to health, to science, to culture and to a sustainable
environment,"he added. Unfortunately, a dogma-based discussion
still prevails and its effects are known to us all, leading to an unbalanced
situation in that the original purposes of IP have been subverted, i.
e. it is being considered an end in itself, he said.
The Minister added that the flexibilities and safeguards still remaining
in the international system are instruments that enable countries to
adapt multilateral commitments to their different levels of development.
The ill-advised extension of the protection standards of IP rights hinders
the already insufficient ability of developing countries to pursue public
interest policies.
Therein, he added, lies our concern with the normative negotiations
currently underway in WIPO, such as the draft treaties on broadcasting
and substantive patent law. To ignore the complexity of this subject,
to be unaware of the reality of the countries, to underestimate the
social dynamics, and to blindly impose private corporate interests are
shortcuts to failure, he said. On the other hand, accepting the existence
of multiple rights and interests, and facing the uncertainties and challenges
presented by the 21st Century, seems a shortcut to success, he said.
Minister Gil also said that other international organizations such as
the UNDP, UNESCO, WTO, WHO, the CBD, and UNCTAD are engaged in assessing
the impacts of IP and have been contributing to the debate on IP and
development. He added that WIPO through the Development Agenda would
convey the message that it is committed to ensuring that IP works to
the benefit of all countries rather than promoting worldwide standards
of protection that are custom-made to meet the demands of the private
sector from the developed countries.
Ambassador Alberto Dumont of Argentina, on behalf of the Group of Friends
of Development, said that the Development Agenda aims to strengthen
the link between IP and development and to make the IP system more responsive
to the needs of different stakeholders. He added that it would like
to see the adoption of a GA resolution covering all five areas of the
Development Agenda: (I) norm-setting; (ii) impact assessment; (iii)
technical cooperation; (iv) transfer of technology; and (v) institutional
matters and mandate.
The Argentinian envoy further said that a substantial resolution on
the continuation of the Development Agenda process is needed to guide
the membership towards concrete implementation of the proposals. He
added that the best approach would be an inclusive process, in which
all positions are taken on board, and seriously debated on substance
and merit.
He called for the renewal of the mandate of the PCDA for another two
years, until 2008, with three meetings being held between now and the
2007 GA. The renewed PCDA would be in charge of presenting to the next
GA a substantial draft recommendation on a first set of action points
and a framework for the way forward. In the second year, the PCDA would
work out the remaining proposals into another draft recommendation to
be adopted by the 2008 General Assembly.
On the work plan for the SCP, the GFOD said that it and other developing
countries have reasserted the items of their interest for the discussions
on patent harmonization: a package of issues including exceptions and
limitations; public interest flexibilities; curbing of anti-competitive
practices; transfer of technology; and disclosure requirement in patent
applications.
Discussions in the SCP could not produce any recommendation for this
GA due to the resistance of some members in accepting anything but the
so-called reduced package of issues.
GFOD made clear that unless the discussions on patent harmonization
are open to inputs from all Members, it will be very difficult for this
General Assembly to agree on a procedure for moving the SPLT process
forward.
On the convening of a diplomatic conference, it said that the draft
text that is to be the basis for discussion at the diplomatic conference
must contain provisions on exceptions and limitations, competition and
cultural diversity, among others, which are regarded as indispensable
by developing countries and many other stakeholders.
The GFOD took a strong view that the exclusion of simulcasting and webcasting
from the draft text and the Diplomatic Conference itself is a prerequisite
for proceeding with the conference.
Indonesia, on behalf of the Asian Group, said that WIPO can be expected
to demonstrate its role in assisting member countries to pursue and
achieve their development and called on it to continue to adapt to the
various needs and characteristics of its Member States, and supported
all efforts that makes WIPO more efficient and more effective in the
organization of its work, especially in the context of the ongoing UN
reform process.
It added that WIPO's technical assistance program should continue to
be provided on a demand-driven basis whilst balancing the respective
interests of all stakeholders and it should aim at developing and improving
the institutional capacity of Member States with a view to enabling
them to meet the requirements of the IP system with their respective
development aspiration.
It reiterated that the mainstreaming of the Development Agenda in WIPO
represents the fundamental position of the Group and stressed that the
inability of the PCDA to reach consensus on concrete outcomes should
not lead to the end of the process.
The Group noted that despite divergences of views among delegations,
it strongly recommended that the GA explore all possible modalities
to continue the process, including by renewing the mandate of the PCDA.
It also recommended that the GA provide clear and workable guidance
to ensure the mainstreaming of the Development Agenda in WIPO.
On the issue of the recommendation to convene a diplomatic conference
on a treaty on the protection of broadcasting organizations, for the
outcome of the diplomatic conference to be successful, the Group underlined
the importance of convening a two-day special meeting in January 2007
and requested the GA to mandate such special meeting to achieve consensus
on some outstanding issues. It also requested that the GA provide clear
instructions that would serve as the guidelines and working method for
that particular meeting.
On the issue of the SPLT, the Asian Group maintained that negotiations
in the SCP should be carried out in a balanced and inclusive manner.
It said that it perceived that harmonization should take into account
the interest and concerns of all member states through appropriate approaches.
It added that it was essential that improvements of the patent system
contribute to the promotion of technological innovation, to the transfer
and dissemination of technology, as well as to the creation of economic
and social welfare.
It was supportive of a balanced and equitable international patent system
that reflects the interests of all member states and is respectful of
the public policy objectives and policy space of developing countries.
Nigeria, on behalf of the African Group, on the issue of the WIPO Development
Agenda, said that Members should "actualize it without further
delay", adding that this can only be achieved when Members States
show flexibility in the negotiations.
In order to take the Development Agenda forward, it proposed that the
mandate of the PCDA be renewed, with a practical work programme and
a time frame for completion of its work. It also proposed the holding
of three five-day sessions in 2007 which should be devoted to discussion
of substantive issues to produce a balanced set of recommendations composed
of both technical assistance and substantive issues such as norm setting.
It added that there should be an element of certainty about the work
of the PCDA, with targets set to be achieved by the next GA. It called
for a re-appraisal of the existing aggregate of 111 proposals with a
view to their rationalization to a manageable size in order to address
them effectively.
The African Group also said that a new approach should be adopted for
phased implementation of the proposals, taking into consideration the
administrative and financial imperatives of such an exercise on short
term, medium term and long term bases, and called to involve the WIPO
Secretariat in availing Members of the different options available in
approaching the matter of implementation of the various proposals, particularly,
norm setting and conducting development impact assessments. The Group
said that WIPO should sponsor the participation of some representatives
from the developing and least-developed countries (LDCs).
On the issue of the work-plan of the SCP, the Group said that the process
needs re-invigoration by way of development of a new work programme
and called for another open forum where substantive issues could be
discussed in detail and recommendations could be arrived at. It said
that the work programme should be balanced, taking into account the
needs of developed and developing countries.
On the issue of convening a diplomatic conference, the Group stressed
that webcasting and simulcasting should not be part of the draft text
that will be the basis for discussion at the diplomatic conference.
It also said that the text should adequately protect the public interest
by the inclusion of safeguards, exceptions and limitations and asked
Members to continue discussions to bridge the existing wide differences.
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