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.

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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.