Decision 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:
  1. to narrow down the proposals, in order to ensure that there is no repetition or duplication;
  2. to separate the proposals which are actionable, from those which are declarations of general principles and objectives; and
  3. 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.)

Source: SUNS #6111,