[DEBATE] : WIPO Conference - Intellectual Property issues

[Riaz K Tayob]

Sangeeta" <ssangeeta at myjaring.net>

The article below shows the general positions of Group B, African, Asian 
an= d Group of Friends of Development on the Development Agenda, patents 
and broadcasting issues.

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 
Asia= n 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 th= e "core".

Group B, on the other hand, expressed support for the paper presented by 
th= e Chair of the PCDA Ambassador Rigoberto Gauto Vielman of Paraguay 
saying tha= t it was a "workable" and "balanced" solution and a way 
forward for discussion. However, the paper on the way forward presented 
by the Chair ha= s 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 wa= s 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 seriou= s 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 a= n 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 t= o 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 o= f all countries rather than promoting worldwide standards of 
protection that are custom-made to meet the demands of the private 
sector from the develope= d countries.

Ambassador Alberto Dumont of Argentina, on behalf of the Group of 
Friends o= f 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 th= e 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 o= n 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 
ope= n 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 need= s 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 mee= t 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 
continu= e 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 disseminatio= n 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 
thei= r rationalization to a manageable size in order to address them 
effectively.

The African Group also said that a new approach should be adopted for 
phase= d 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 i= n detail and recommendations could be arrived at. 
It said that the work programme should be balanced, taking into account 
the needs of developed an= d 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. +

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