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.

Source: SUNS #6109 29 September 2006