WIPO general assembly to decide on key issues

This year's WIPO General Assembly, which begins Monday 26 September and will run to 5 October, will have a full agenda, with many decisions to be taken that will have significant effect on the future of the organization.

At last year's Assembly, and in many meetings since then, many developing countries have been battling for a Development Agenda (DA) to be established within WIPO. Although all members have subscribed to this in principle, in practice, the developed countries may not mind having a discussion on it, but have resisted the DA taking root or having it affect the rules, the rule-making process or the nature of WIPO's functioning.

The division over the Development Agenda and its future is expected to cast a long shadow over this year's Assembly. It will have to decide whether and how the process is taken forward, and especially on the venue or forum for the continued discussion.

Important decisions will also be taken on two norm-setting activities. The first involves WIPO's patent committee, where a substantive patent law treaty (SPLT) is being discussed. There is a North-South dispute whether the discussions should focus only on issues which the developed countries are interested in, or also include the issues which have been advocated by developing countries.

This fight has significant effects, as it could lead to new rules globally on what is and is not allowed to be patented in future. At present the battle has led to an impasse on the SPLT negotiations, and the debate in the General Assembly will determine if the impasse continues or is broken and if so, how.

The second involves WIPO's copyright committee, where discussions have taken place on the protection of broadcasting organizations. The secretariat and the developed countries are pushing for convening a Diplomatic Conference to launch negotiations on a new treaty. Some key developing countries are against having such a conference, at least at this stage.

This year's Assembly is shaping up to be a battle on whether the developing countries' initiative to reform WIPO can be sustained and expanded, not only in the specific issue of the Development Agenda, but also whether the principles called for in that Agenda can begin to be respected and operationalised, especially in the discussions and decisions to be made on the SPLT and the proposed broadcasting rights treaty, which are presently the two most important norm-setting activities.

According to some diplomats, the developed countries can be expected to propose (implicitly or explicitly) a "package deal" - that developing countries agree to the SPLT negotiations to proceed according to the lines proposed by developed countries, in exchange for the latter allowing the Development Agenda discussion to proceed in the venue preferred by the developing countries. The launch of negotiations for a broadcasting treaty could also be part of this "package deal", or else a bonus for developed countries.

Several developing countries, including the Friends of Development Group ( led by Argentina and Brazil) and some Asian countries including India, are expected to insist that the Development Agenda be allowed to proceed without pre-conditions, and that the merits of the SPLT and broadcasting treaty be considered on their own, without their being linked to any "package deal."

On the issue of the Development Agenda, the key decisions to be taken at the Assembly are whether the process is to be continued and how, as well as whether it will be undertaken through the present inter-governmental inter-sessional meetings (IIM) established by the 2004 Assembly, or through a subsidiary committee, the PCIPD (Permanent Committee on Cooperation for Development Related to Intellectual Property).

The developing countries want a strong mandate for continuing the work on the Development Agenda, and through the IIM process. They are against the proposal of many developed countries to shift the work to the PCIPD, which has up to now only been dealing with matters related to technical assistance.

The Development Agenda has a wide range of issues (including reviewing the mandate and governance of WIPO, promoting pro-development norm-setting, an independent evaluation unit, establishing guidelines for WIPO's technical assistance programmes, and for technology transfer and competition policy).

The developing countries fear that if the DA process moves under the PCIPD, there would be the risk of this broad agenda being narrowed down to technical assistance issues.

There have been three IIM meetings since the last General Assembly. Many proposals have been put forward, notably by the Friends of Development Group. However, the IIM was unable to come to any agreement on recommendations for taking the work forward, which it had been mandated to do. It will thus only present a factual report of the discussions and proposals, and the Assembly will take on the task of deciding the fate of the Development Agenda.

The other major decision for the General Assembly is on the future work programme of the Standing Committee on Patents (SCP). Member states were divided over this work programme during the 11th session of the SCP on 1-2 June 2005.

The developed countries would like to use the SPLT to have an international agreement on scope and definition of prior art, grace period, novelty and inventive step, and have these globally harmonized in national patent laws.

Many developing countries have strong reservations on such a harmonization exercise, as it may have adverse developmental effects.

Instead, they propose that the SPLT deal with reforming patent laws to take more account of public interest flexibilities, the disclosure of origin of genetic resources, transfer of technology and the curbing of anti-competitive practices.

A controversy had erupted over the convening by the WIPO Director-General Dr Kamil Idris of an informal consultation in Casablanca (involving a limited number of countries) that came up with proposals along the lines advocated by the developed countries. The SPLT negotiations would focus on the four issues of interest to them, while the issues of the developing countries would be transferred to the intergovernmental committee on genetic resources, which at the moment is not involved in norm-setting.

During the June meeting of the SCP, many developing countries criticized the untransparent and non-participatory procedure surrounding the Casablanca meeting, as well as the substance of its proposals.

The debate over the SPLT will now be turned over to the General Assembly, which will have to decide on how the SCP is to proceed with its work.

Another major issue before the General Assembly is whether to convene a Diplomatic Conference on the Protection of Broadcasting Organizations. A new broadcasting rights treaty had been advocated especially by some developed countries, and a consolidated text has been discussed at the Copyright Committee.

The convening of a Diplomatic Conference has been especially pushed by the WIPO Secretariat, which in a paper for the Assembly has recommended that such a conference be convened in the second quarter of 2006. The paper also deals with the procedures for such a Conference, and one of the proposed rules provides extraordinary rights of participation to the Secretariat.

The proposed Rule 3 states that the WIPO Director-General and any official of the International Bureau designated by him "may participate in the discussions of the Conference, meeting in Plenary, as well as in any committee or working group thereof and may, at any time, make oral or written statements, observations or suggestions to the Conference, meeting in Plenary, and any committee or working group thereof concerning any question under consideration."

Some diplomats have commented that such powers to be given to members of the International Bureau (the Secretariat) would be both unprecedented and inappropriate, as negotiations for rules, especially a new treaty, should be carried out by member states, with the Secretariat playing only an administrative function.

Some diplomats also have strong reservations about the Secretariat convening six regional consultations in May-July 2005. The invitations had been issued to technical experts in governments to participate in their personal capacity. At the last Copyright Committee meeting last November, several developing countries had indicated that they were not in favour of regional consultations but preferred open-ended informal meetings that allowed all Member States and observers to participate.

However, no open-ended meeting was convened, and instead the regional consultations were organised. The regional consultations have, according to the WIPO Secretariat report, produced broad agreement that a Diplomatic Conference be convened. The legitimacy of the conclusions, and the procedures in organising the consultations, may come up for discussion at the Assembly.

On substance, the proposed broadcasting rights treaty is rather contentious as many reservations have been expressed by some developing countries over the need and scope of such a treaty. Some countries, as well as many NGOs, have serious concerns, especially that the treaty would create a layer of additional or new rights for parties (in this case broadcasting organizations and webcasters) that are not authors of creative works, and thus unfairly add on to costs to be borne by consumers, other users and the public.

Among the subjects that have been contentious in previous discussions are the term of protection, technological protection measures, and whether web-casting should be part of the treaty.

The General Assembly will also decide whether the mandate of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC) should be extended to continue its work, and to provide the IGC with directions.

Another agenda item on which there may be significant discussion is the proposed programme and budget for 2006-2007. Included in this item is a report by the Joint Inspection Unit of the United Nations, which contains a critical review of the management and administration practices of WIPO.

(* With inputs from Sangeeta Shashikant.)