<incom> Update WIPO Development Agenda

[Soenke Zehle]

A2K Brasil published a survey of what's coming up re: the 
WIPO-Development-Agenda process, Soenke

A development analysis of the outcomes of the 2006 WIPO General Assemblies
Wednesday 28 March 2007
<http://www.a2kbrasil.org.br/ENG/A-development-analysis-of-the>

Paper developed by the South Centre’s Innovation and Access to Knowledge 
Programme as part of the institutional partnership between Centre for 
Technology and Society (CTS) of Fundação Getúlio Vargas School of Law 
and South Centre, an intergovernmental organisation of developing 
countries with its headquarters in Geneva.

Post by Viviana Munoz, Ermias T. Biadgleng, Marcia Aribela, Caroline 
Ngome Eneme, Marumo L. Nkomo and Sisule F. Musungu (South Centre, 
Innovation and Access to Knowledge Programme).

Introduction

The 2006 World Intellectual Property Organization (WIPO) Assemblies took 
place from 25 September to 3 October 2006. At the session, Member States 
took decisions related to a wide range of issues, including major 
substantive and political ones, which have a direct impact on the 
ability of developing countries to protect the public interest and 
access, generate and use knowledge and technologies. From a development 
perspective, the main issues on which the WIPO General Assemblies took 
decisions were the following:

(a)The continuation of the discussion on the establishment of a 
Development Agenda for WIPO;

(b)The WIPO work plan on patent law issues and the Draft Substantive 
Patent Law Treaty (SPLT);

(c)The proposed Diplomatic Conference for a WIPO Treaty on the 
Protection of Broadcasting Organizations; and

(d)The work of the Intergovernmental Committee on Intellectual Property 
and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Other significant issues discussed at the WIPO General Assemblies 
included: the work of the Advisory Committee on Enforcement (ACE); the 
Protection of Audiovisual Performances; the Programme Performance Report 
for the 2004 – 2005 period, and the WIPO programme implementation during 
the first half of 2006; issues related to the strengthening of the role 
of Member States in WIPO governance and oversight, including the design, 
control and management of the WIPO programme and budget; the conclusion 
of the Singapore Treaty on the Law of Trademarks (Singapore Treaty), in 
March 2006; and the approval of WIPO agreements with other 
intergovernmental organisations.

This post presents a summary and non-exhaustive analysis of the 
decisions of the 2006 WIPO General Assemblies on the four key issues and 
their implications for developing countries and other stakeholders in 
2007 and beyond.

The Discussions on Establishing a WIPO Development Agenda

Two years have passed since Member States of WIPO embarked on a process 
to establish a Development Agenda for WIPO, initiated by 15 developing 
countries that make-up the Group of Friends of Development (Argentina, 
Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, 
Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela). From 
a development perspective, the process towards establishing a 
Development Agenda for WIPO is perhaps the most important one ever 
initiated in WIPO by developing countries.

The proposals as presented by the Friends of Development encapsulate 
many of the concerns that had been voiced for a long time by developing 
countries, academics, experts and civil society organizations in 
relation to the activities of WIPO and the role of the organization as a 
United Nations (UN) agency. These include, for example, concerns that 
WIPO’s work is not in line with that of other UN organisations and 
agencies, including that its technical cooperation and norm-setting 
activities do not fully take into account the different levels of 
development of countries, the need to protect the public domain, and 
that flexibilities in existing treaties are not sufficiently emphasised 
in technical assistance. The Friends of Development did not only raise 
these and other concerns, but also made pro-active and detailed 
proposals on how WIPO may transform its structure and governance as well 
as its programmes to be more development-friendly and aligned with the 
requirements of the Millennium Development Goals (MDGs). Other Member 
States such as the African Group, the United States, the United Kingdom 
(UK), Colombia, Mexico and a group of Arab countries have also made 
useful and specific proposals for a WIPO Development Agenda. There are 
now a total 111 separate proposals. Although there have been substantive 
discussions on many of the proposals, in-depth analysis is pending and 
no proposal has been agreed to or discarded.

The WIPO General Assembly at its 2006 session was faced with the crucial 
task of giving new direction and impetus to the process, given that the 
Provisional Committee on Proposals Related to a WIPO Development Agenda 
(PCDA), a committee established under the authority of the General 
Assembly to discuss the various proposals on the establishment of a 
development agenda for WIPO, failed to reach consensus on the way 
forward. There was overall support for the process to continue, 
following agreement that the issues related to the establishment of a 
WIPO Development Agenda are of importance to all Members. The challenge, 
however, was the process for continuing the discussions. The main points 
of divergence on how to proceed related to: whether the PCDA mandate 
should be renewed, or if a permanent committee should be set up to 
continue discussions on the 111 proposals; the mandate and time period 
for the renewed PCDA, if so agreed; and the method for organizing the 
discussions on the 111 proposals to arrive at concrete results. During 
the General Assembly meeting, many different ideas were presented by 
Member States on the precise methodology for moving forward.

The final decision adopted provides both opportunities and challenges 
especially for the Group of Friends of Development and other developing 
countries interested in a WIPO that is better focussed on their 
development needs. The decision, among others, provided that: The 
mandate of the PCDA would be renewed for another period of one year with 
two 5-day sessions during the year organised in a manner that would 
allow for structured in-depth discussions on all 111 proposals made so 
far. The first session would address a first set of proposals contained 
in Annex A of the decision and the second the remainder of the 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. 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: 
to narrow down the proposals, in order to ensure that there is no 
repetition or duplication; to separate the proposals, which are 
actionable, from those which are declarations of general principles and 
objectives; and to note those proposals, which relate to existing 
activities in WIPO and those which do not. The Chair of the General 
Assembly would, 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.

The opportunity is that there will continue to be a dedicated forum and 
space for developing countries and other stakeholders including civil 
society groups to discuss how to mainstream the development dimension 
into all WIPO activities and programmes and to ensure that the 
organisations governance structure is one that is responsive to changing 
times and to the needs of developing countries. It is hoped that better 
structured discussion based on initial documents prepared by the Chair 
of the General Assembly would produce better results than before. 
However, many challenges remain.

First, given that the mandate of the PCDA was renewed for only one year, 
and only two sessions of the PCDA will be held before the General 
Assembly session in 2007, taking into account the working methods of 
WIPO committees, arriving at consensus or agreement on the more 
important, and hence, the more difficult issues may prove elusive. If 
concrete results are not realised a lot of political capital will have 
to be expended again at 2007 Assemblies just to keep the discussion 
going. Second, because of the separation of proposals into two different 
sets, it is likely that Members would not want to make concessions until 
they know what happens to the second set of issues which may be 
considered more important. This is logical in any negotiations and 
especially in WIPO with recent history in mind. This means that, except 
with very visionary leadership at the PCDA, it is inevitable that the 
deal with have to be reached only at the 2007 General Assemblies.

Third, there is so far no clarity as to what success for the development 
agenda will mean. To some it is short-term gains. To others it is a 
question of long-term transformation of WIPO both in terms of structures 
and processes as well as in terms of organisational culture. From the 
latter perspective, a lot of progress has already been achieved and its 
worth spending as much time as is necessary to move forward. From the 
former perspective the faster we close the issue the better and so some 
quick gains should be good enough. The test will be which perspective 
developing countries take. Finally, is the continued view among 
developed countries that the Development Agenda is against their 
interests and the seeming efforts to contain the proponents as revealed 
by an Intellectual Property Watch (IP-Watch) exclusive story on the 
discussions in Group B (developed countries) on how to deal with the 
development agenda 
(http://www.ip-watch.org/weblog/index.php?p=449&res=1280&print=0). In 
these circumstances there remains a significant trust deficit.

The Future of the Draft Substantive Patent Law Treaty (SPLT)

Discussions concerning the Draft Substantive Patent Law Treaty (SPLT), 
and more broadly, on patent law issues, have come to a stand-still in 
WIPO. This is largely a result of the growing concerns regarding the 
potential economic and social impacts of the proposed international 
binding standards in fundamental areas of patent law. A turning point in 
the discussion took place at the 2005 session of the WIPO General 
Assembly, that decided in respect of a work plan for the Standing 
Committee on the Law of Patents (SCP) and the discussions on the SPLT, 
that an informal open forum would be held in Geneva in the first quarter 
of 2006 on all issues that have been raised in the draft SPLT, or that 
Member States wish to include in the draft SPLT. The informal forum, 
which was followed by an informal session of the Committee, was intended 
to provide an opportunity to begin sorting out the impasse.

While the Open Forum was an important event that helped create greater 
understanding on a number of issues and fostered fruitful exchanges 
among an array of stakeholders, the informal session of the SCP, meant 
to take forward the discussions started in the open forum, was unable to 
agree on a work programme for the SCP. Member States were unable to 
break the deadlock between two different positions; on the one hand, 
developed countries together with some of the economies in transition 
wishing to join the European Union (EU) or those that are members of the 
European Patent Organization (EPO), commonly called Group B+ insistence 
that the SCP should have a limited work plan based on a “reduced 
package” composed of four issues identified by them (also known as 
SPLT-light) and, on the other hand, most developing countries which have 
argued that their concerns must also be part of any package and should 
be discussed on an equal footing with Group B+’s four issues.

It is in this context that the WIPO General Assembly at its 2006 session 
had to address the issue. After lengthy discussions and informal 
consultations little progress was achieved in terms of narrowing the 
differences. As a result, the SCP will be in virtual suspension in 2007 
as Members seek to find a way forward based on the decision of the 
General Assembly that: delegations may submit, by December 2006, 
proposals for the work programme of the SCP including proposals on ways 
forward or approaches; the Chair of the General Assembly will conduct 
informal consultations in the first half of 2007 with the aim of 
discussing the proposals and recommending a work plan for the SCP to the 
General Assembly in September 2007; and the General Assembly in 2007 
will consider the results of the consultations with a view to 
establishing a work plan for the SCP for 2008 and 2009.

Parallel to the SCP process, two other processes related to the SPLT and 
the general WIPO work on patent law issues are currently underway. These 
two processes will have direct or indirect implications for the 
discussions on the future of the SCP work plan and should therefore be 
kept in mind. The first is the process by Group B+ to continue 
discussions on the four issues outside of WIPO. The aim of the 
initiative is to move the negotiations for a SPLT outside of WIPO, if 
the process in WIPO does not move forward in accordance with Group B+’s 
expectations. Developing countries need to watch developments in this 
process but should resist pressure to agree to the terms of the 
discussion on the SPLT that do not include their interests.

While it is preferable to have a multilateral discussion on these issues 
it can not be that such multilateral discussions are predicated on a 
“what we want or nothing” attitude that Group B+ has taken. Indeed, one 
lesson to learn here is that time might have come for developing 
countries to seriously consider shaping the international processes by 
having development-oriented South-South IP Agreements which would 
provide a template for international discussions. Such Agreements, which 
could take the form of soft or hard law, could be considered regionally 
or cross-regionally. Whether the idea of South-South 
development-oriented IP agreements is pursued or not, however, 
consideration will need to be given to developing countries finding a 
forum where they can shape their positions beyond mere coordination.

The second important process is the series, started in 2006, of WIPO 
patent colloquia on various patent-related issues some of which have 
been previously proposed for discussion by developing countries and 
civil society groups. The discussions, provided that the colloquia offer 
a true multistakeholder platform to discuss these key issues outside of 
negotiations, should obviously be welcomed. In the context of the future 
work plan of the SCP these discussions are important because they are 
likely to shape the thinking on these issues in 2007 as informal 
consultations continue. The discussion on the issue offer an opportunity 
to shift the discussion in WIPO from a narrow focus on the SPLT to a 
larger set of key patent-related issues that are important not only to 
public interest groups but also to governments and industry as the 
previous colloquia discussions have demonstrated. However, the colloquia 
should not be seen as an alternative forum to discuss those issues 
raised by developing countries and civil society while the SCP is 
reserved as the forum for discussing the SPLT-light.

The Proposed WIPO Treaty on the Protection of Broadcasting and 
Cablecasting organisations

One of the most important and contentious issues for WIPO Member States 
during the General Assembly at its 2006 session related to whether, and 
under what conditions, to convene a diplomatic conference to negotiate a 
new instrument on the protection of broadcasting organizations, 
including cablecasting organizations. At the last session of the WIPO 
Standing Committee on Copyright and Related Rights (SCCR) in September 
2006, there was a clear lack of consensus among Member States both on 
how to proceed and on the substance of a possible new instrument on the 
protection of broadcasting organisations.

The lack of consensus was again evident in the discussion during the 
WIPO General Assembly, a clear sign that despite having discussed the 
issue for over 8 years, very little in-depth analysis and substantive 
discussions have taken place in relation to the possible new instrument. 
The European Communities (EC), Russia, Mexico and Japan were the main 
countries expressing support for a decision by the General Assembly to 
accept the full recommendation of the SCCR. Traditional broadcasting 
organisations in the EC have long been lobbying their governments for 
the conclusion of a treaty that would create new rights and additional 
protection for their signals and broadcasts, in addition to those they 
currently enjoy under the Brussels Satellite Convention, the Rome 
Convention and the TRIPS Agreement.

On the other hand, the United States and other developed countries, 
including Canada as well as other countries, opposed the scheduling of a 
Diplomatic Conference for the date recommended by the SCCR, noting that 
there was a clear lack of consensus among countries on many issues, 
including the scope of the proposed instrument. The United States 
government has, over the past year, been subject to increased internal 
pressure from civil society and business stakeholders, including 
internet service providers (ISP) and podcasters, to oppose the proposed 
treaty. Among other reasons, these stakeholders view the proposed 
instruments as unnecessary and potentially harmful particularly the 
proposals to grant broadcasting organisations exclusive rights that 
would extend beyond those required by the Rome Convention. The United 
States is also concerned with some of the alternative provisions 
concerning competition policy, protection of cultural diversity and 
specific limitations and exceptions that have been submitted by 
developing countries and are currently included in the Revised Draft 
Basic Proposal.

Many developing countries, including Brazil, India, the African group, 
among others, expressed reservation concerning the convening of a 
diplomatic conference since further analysis and impact assessments were 
required and there was still no agreement on the objectives, scope, and 
object of protection of the proposed instrument.

Clearly a decision to convene a Diplomatic Conference requires careful 
consideration, especially by developing countries given the central role 
that broadcasting plays in the diffusion, transmission and absorption of 
knowledge in these countries’ social and economic development. 
Developing countries need broadcasting services to remain accessible and 
affordable to all citizens, and to follow the values and objectives of 
that underpin the media system, including freedom of expression, access 
to information, media pluralism and cultural diversity. For developing 
countries, the most unfavourable outcome would not be a failed 
Diplomatic Conference, but an unbalanced treaty that may lead to 
unintended consequences, including possible restrictions on the flow of 
information, access to knowledge, freedom of expression and cultural 
diversity; unnecessary costs for consumers and exclusion of the poor 
from the social benefits of broadcasting; stifling of competition and 
technological innovation; the stalling of creative activity; and 
prejudicing the rights of copyright owners and other related right holders.

Due to persisting divergences the General Assembly decided to convene a 
diplomatic conference subject to certain conditions. Among others it was 
decided: To approve the convening of the Diplomatic Conference on the 
condition that two special sessions of the SCCR 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. 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. The Diplomatic Conference will be convened if such agreement 
is achieved. If no such agreement is achieved, all further discussions 
will be based on document SCCR/15/2. The scope of the treaty will be 
confined to the protection of broadcasting and cablecasting 
organizations in the traditional sense. That the Revised Draft Basic 
Proposal (document SSCR/15/2) will constitute the Basic Proposal with 
the understanding that all Member States may make proposals at the 
Diplomatic Conference.

The decision of the General Assembly made important modifications to the 
recommendations submitted to it by the SCCR. Primarily, it was agreed 
that the Diplomatic Conference cannot take place unless agreement is 
achieved, based on a signal-based approach, on the objectives, specific 
scope and object of protection of the proposed treaty on the protection 
of broadcasting organizations. This reflects the position of most Member 
States that the Revised Draft Basic Proposal, document SCCR/15/2, while 
constituting a good basis for continued discussions, does not constitute 
a sufficient basis to move towards a Diplomatic Conference.

The main challenge for Members now will be to seek to build consensus on 
the main aspects of the proposed treaty to ensure that the new 
protection that may be granted to broadcasting organizations is not 
overly broad and that such protection, if necessary, does not give 
rights to organizations which do not necessarily require such 
protection. The participation of civil society organisations and other 
stakeholders, including industry, in the upcoming SCCR meetings will be 
important to present evidence of the problems with the proposed approach 
and the potential negative effects of granting overbroad protection or 
exclusive rights to broadcasting and/or cablecasting organizations. It 
is quite clear that not even the sophisticated developed countries know 
what the possible implications of the treaty are and who will benefit.

Intellectual Property and Genetic Resources, Traditional Knowledge and 
Folklore

For almost eight (8) years now, the relationship between intellectual 
property rights and the use, conservation and appropriation of genetic 
resources, traditional knowledge and folklore has been the subject of 
important discussion at WIPO. Related discussions have also continued in 
other intergovernmental organisations, including at the Convention of 
Biological Diversity Conference of the Parties (CBD - COP) and the World 
Trade Organisation (WTO) as well as other WIPO Committees and bodies 
such as the SCP and the Working Group on the Reform of the Patent 
Cooperation Treaty.

Since the creation of the Intergovernmental Committee on Intellectual 
Property and Genetic Resources, Traditional Knowledge and Folklore (the 
IGC) in 2001, the participation of Member States, civil society 
organisations, indigenous groups and other actors has been growing 
exponentially. While the IGC has provided a space for a number of 
stakeholders to meet and discuss, and a large number of documents, which 
have helped to increase the understanding of the issues, have been 
produced, progress has been slow. One of the reasons for the slow 
progress seems to be the complexity of the issues and large divergences 
of views in respect to the role that the intellectual property system 
may play in relation to the protection and appropriation of genetic 
resources, traditional knowledge and folklore. Another reason could be 
that some developed countries have an interest in slow progress so as to 
stall progress on this issue in other intergovernmental organisations, 
particularly WTO, as well as other WIPO Committees such as the SCP. 
These developed countries have argued that since the discussions are 
taking place in the IGC, parallel discussions should not proceed 
elsewhere. The mandate of the IGC currently extends until the year 2007.

The priority for developing countries continues to be the advancement of 
the discussions in all related fora. Given that the IGC at its last 
session held from 24 – 28 April 2006 only forwarded to the General 
Assembly a report of its activities, no decisions were expected to be 
taken by the 2006 General Assembly. However, the General Assembly can 
provide guidance to the work of any Committee, including the IGC. In 
this regard, during the General Assembly discussions developing 
countries highlighted the need to accelerate the work of the Committee 
to generate tangible results that excludes no outcome, including the 
possible development of an international instrument or instruments on 
the protection of traditional knowledge and traditional cultural 
expressions, as well as mechanisms to prevent the misappropriation of 
genetic resources. Several developing countries also asked the General 
Assembly to provide clear directions to the IGC to accelerate and 
finalize its work before the expiry of its current mandate in 2007.

Conclusion

The various decisions of the WIPO General Assembly at the 2006 session 
have set the stage for 2007. The various key decisions provided 
important opportunities for developing countries to bring their concerns 
to, and seek solution at WIPO. With the growing importance of discussion 
on IP and the socio-economic impact of the current international 
standards and rules these opportunities should be fully utilised. At the 
same time, however, significant challenges still remain for these 
countries. Clearly articulating their concerns and generating evidence 
for workable solutions, committing the necessary political, material and 
intellectual capital, coordinating joint positions and being able to set 
the agenda at WIPO and other related forums are some of the key problems 
and challenges. Exploiting the opportunities offered by the decisions of 
the 2006 WIPO General Assembly decisions will therefore also mean 
addressing these challenges.