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.

Source: SUNS #6107 27 September 2006