Monday, April 16, 2007

Pre-Development Agenda Meeting In Singapore

Thiru Balasubramaniam
16 April 2007

The Government of Singapore will host a pre-Development Agenda meeting from 30 May to 1 June 2007. The meeting is being convened by the Intellectual Property Office of Singapore (IPOS) with invitations being signed by Ms. Liew Woon Yin, Director-General (IPOS).

According to the invitation which was sent out on 29 March 2007, the Singaporean Government is encouraged by positive outcomes achieved in the 3rd Session of the Provisional Committee On Proposals Related to a WIPO Development Agenda (PCDA). In order to "ensure that the PCDA succeeds in its endeavor, to submit a report to the General Assembly, later this year", Singapore considers it imperative that the 71 proposals on the table (including establishing a Treaty on Access to Knowledge and fostering discussion on a Medical R&D Treaty), be "examined intensively and a proper understanding developed" prior to the 4th Session of the PCDA which takes places from 11-15 June 2007 in Geneva, Switzerland. This initiative appears similar in spirit to the New Delhi pre-Development Agenda of February 2007 where key stakeholders were invited to frame a common consensus. It remains to be seen how this informal meeting of selected governments will tackle the thornier elements of Annex B of 71 proposals related to a Development Agenda.

The importance attached to achieving a favorable result at the PCDA meeting in June is evidenced by Singapore's remark in the invitation letter that the

process to establish a WIPO Development Agenda has attracted considerable attention the world over and has raised the expectation of the world IP community, particularly developing countries.

As the Singapore informal is intended to be representative, invitations have been extended to developing and industrialized countries and transition economies. In order to achieve geographic balance, it is understood that the regional coordinator will be requested to nominate representatives (either at the capital level or the Geneva level) to attend the meeting. It appears that WIPO will fund the travel monies for officials from developing countries and transition countries. Since this meeting "informal", it is unlikely that there will be any representation from NGOs although this is not explicilty mentioned in the invitation letter. As the future success of the Development Agenda is at stake at the June PCDA meeting, the bar is set high for the Singapore informal to pave the way for WIPO to truly integrate the development dimension.

Thursday, February 22, 2007

Colombia, the Public Domain and the Development Agenda

February 22, 2007
Thiru Balasubramaniam

After instense negotiations today, the WIPO PCDA appreared to come to a consensus on proposals related to Cluster B: Norm-setting, Flexibilities, Public Policy and Public Domain with the following language.

1. Norm-setting activites shall:
-be inclusive and member driven;
-take into account different levels of development;
-take into consideration a balance between costs and benefits;
-be a participatory process, which takes into consideration the interests and priorities of all WIPO Member States and other stakeholders, including civil society at large; and
-be in line with the principle of neutrality of the WIPO Secretariat

2. Consider the preservation of the public domain within WIPO's normative processes and deepen the analysis of the implication and benefits of a rich and accessible public domain.

Colombia, however, expressed its reservations on the four proposals contained in Annex A and Annex B related to the protection of public domain. Colombia noted that a consensus process should not compel a dissenting minority to accept the view of the majority. Despite the progress WIPO has made in discussing norm-setting, flexibilities, public policy and public domain, dark clouds remain over the incorporation of good public policy principles into WIPO's normative processes.

Wednesday, February 21, 2007

Tripartite alliance against the public domain: Colombia, El Salvador and Italy

February 21, 2007
Thiru Balasubramaniam

Colombia, El Salvador and Italy are playing an obstructionist role in
the WIPO Development Agenda talks today repeatedly trying to torpedo
the idea that WIPO should "promote measures that will help countries
combat IP related anti-competitive practices" and the idea that WIPO
should consider the protection and enhancement of public domain.
Chile, Brazil, Argentina and the United States have a more nuanced
understanding of the implications of a robust public domain.

Tuesday, February 20, 2007

No Conflict of Creeds: WIPO Delegates discuss the public domain

February 20, 2007
Thiru Balasubramaniam

(Thanks to Malini Aisola, Ren Bucholz, Teresa Hackett and Miriam Nisbet for their notes)

The landscape of the WIPO Development Agenda discussions this week have resembled a game of “Battleships” or “Bingo” with member countries often defining the contours of the debate on such important public policy issues as “technical assistance and capacity building”, “norm-setting” and the “public domain”. This game of Bingo manifested itself in countries’ indication support of proposals by number and letter, for example, “we support the general thrust of 1, 5, 12 and 16” of Cluster A” (Technical Assistance and Capacity Building) or “we support the principles behind 17 and 20” of Cluster B (Norm-setting, flexibilities, public policy and the public domain). To further compound matters, countries used Ambassador Enrique Manalo’s (Chair, WIPO General Assembly) matrix of 111 proposals submitted to the WIPO Development Agenda process, yet this document has not been distributed to the WIPO PCDA this week. Trying to follow the debate without a physical copy of the Manalo matrix provided by the International Bureau was an exacting task given the rapid pace of negotiations especially with the impetus to streamline the 40 proposals contained in Annex A into something more concise.

Despite the Bingo/Battleship nature of the negotiations, Tuesday afternoon bore witness to a lively and interesting debate on the role of the public domain within WIPO’s programme of work. Tom Giovanetti of the Institute for Policy Innovation kicked things off in the morning in his general statement by asserting that,

Consider, for instance, the proposal that WIPO should consider the protection of the public domain within its normative processes. Now, everyone recognizes the importance of a rich public domain, and WIPO already gives the public domain due consideration. But there is no evidence that the public domain is in any danger that requires an addition to WIPO's mandate. Rather, this is simply a bit of rhetoric that is being used by opponents of Big IP to raise fear, uncertainty and doubt about the virtues of intellectual property.

The delegate from Chile countered by stating the proposals on safeguarding and preserving the public domain received great support during the development agenda process by governments and NGOs including the Library Copyright Alliance.

The Chilean representative stressed that the
public domain is important for access to knowledge. An accessible public domain benefits inventors, universities and research centres. It is not incommensurate with protecting intellectual property as was suggested today.
[My understanding is that Chile was referring to Tom Giovanetti’s intervention.]

The Chilean delegate further intimated that a robust public domain would enrich and work within intellectual property architecture. From KEI’s perspective, an enhanced public domain contributes to a fecund knowledge ecosystem that fosters creativity and innovation in new paradigms.

The delegate from Colombia argued that proposal 17 which calls for WIPO to “consider the protection of the public domain within WIPO’s normative processes” went far beyond the remit of WIPO’s mandate further noting that creations in the public domain was not in WIPO’s purview.

In contrast, Uruguay stated that,

we have often said before that there is a relationship between intellectual property and human rights and that access to knowledge is enshrined in international human rights conventions and the rights of the child. We must guarantee access to knowledge, education and culture because WIPO is a specialized agency of the UN and it should act in line with these goals. The PCDA should not lay outside the MDGs which must serve as the guide for devising the norms within the agenda.

This is a platform to devise a more balanced system in the public interest, and this is why we want provision to strengthen the public domain to stand independently.

The United States supported the general principles behind provision 17 tabled by Chile on the public domain while Brazil noted that,

Proposal 17 is perfectly viable and relevant for the organization. When we speak of the protection of the public domain, we do not read this as legal protection of the public domain. We look at it as general protection for the public domain against ever-encroaching IP rights
created by the upward harmonization of patent, trademark, copyright and related rights.

Switzerland and Italy expressed their reservation on proposal 17 (Cluster B) which called for the “protection of the public domain within WIPO’s normative processes.” Italy in particular asserted that
The public domain cannot, by definition, be protected. Therefore we need to be clear about what can and cannot be protected because it has already fallen into the public domain.

The delegate from Chile responded saying,
I would like to dispel one or two doubts about the use of terminology. The proposal does not refer to “protecting” the public domain, as Russia has said, so we could use another word e.g. "preserve" or "safeguard," perhaps?

When we create rights, these can have undesirable effects. There are directives in the EU which have review mechanisms so that they can have a corrective mechanism later. For example, TPMs can have effects that outlive the copyright term on the underlying work.

It is clear from the rich discussion of the public domain at the WIPO Development Agenda that some stakeholders have a long way to go in understanding of the public domain. Hopefully, WIPO can facilitate capacity building to augment understanding of the role of a robust public domain within the IP system. Rather than branding the public domain as "mission creep", it is incumbent upon the International Bureau and WIPO Member States to start thinking of how to "consider the protection of and enhance the public domain within WIPO's normative processes" as a critical part of WIPO's mission.

Monday, February 19, 2007

New Chair of WIPO Committee dealing with Development Agenda

February 19, 2007
Thiru Balasubramaniam

The WIPO committee (PCDA) overseeing the Development Agenda got off to slow start today commencing at 10:48 AM (48 minutes late) due to several concurrent regional coordination meetings. Brazil, on behalf of the Group of Latin American and Caribbean countries (GRULAC) nominated Ambassador Trevor Clarke of Barbados to be chair of the 3rd session of the WIPO. Ambassador Clarke just finished a one year post chair the World Trade Organization (WTO) Council for TRIPS. In his intervention, the Brazilian delegate noted that Ambassador Clarke would be an "excellent choice" and stated that "we trust him fully and he would be a good person to guide us to a positive outcome".

Italy, on behalf of Group B (industrialized nations plus the Holy See), seconded the nomination of Ambassador Clarke and proposed Ambassador Muktar Djumaliev of the Kyrgyz Republic as Vice Chair. Both these nominations were accepted by the WIPO PCDA. The choice of Vice Chair was a curious one considering that the Kyrgyz Republic's submission of 40 proposals ("early harvest") is currently the main agenda item for this week's discussion.

Ambassador Clarke set out a congenial start to the meeting with charming candor noting that
I will be working cautiously because this is a very serious assignment, and one of my friends said that this is because I like punishment. But I'm always to take a challenge, so thanks for the opportunity to do this. To date, I know very little about the PCDA, but I've been talking to as many members as I can to get a feel for what's going on. Let me assure, however, that any contribution I make can only be made with your support. My role is to facilitate dialogue. I come to the Committee with the belief that you want to make progress on the matter that has been under discussion for two and a half years.We need to consider how we proceed this week. One critical issue relates to President Manalo's (Ambassador of the Philippines and Chair of the WIPO General Assembly) initial working document. We should seek your cooperation to use this working document for our discussions this week. The document has been produced by the recommendation or instruction from the GA. It is intended to guide our work this week and then in June.

As Ambassador Clarke had another engagement at 11 AM, he suspended the meeting till 3PM. Before the morning session closed, the WIPO PCDA accepted the requests for ad hoc accreditation from Knowledge Ecology International (KEI) and the Yale Information Society Project.

For an overview of some of the issues at stake please check out my colleague Malini's blog post on a KEI brown bag lunch held recently in Washington, D.C.

Tuesday, February 06, 2007

Icy winds and open standards tempest descend upon Ivy League haven

Thiru Balasubramaniam
February 6, 2007

On a cold winter's day (February 3, 2007) buffeted by hyperborean winds, around 70 participants including government officials (Belgium, China, South Africa and the United States), academics (Georgetown, Harvard, Hebrew University, MERIT, Santa Clara, University of Colorado and Yale) public interest groups (IP Justice, Knowledge Ecology International), corporate representatives (IBM, Microsoft and SUN), the World Bank and technologists met in the New England town of New Haven at the Open Standards (OSIS) convened by the Yale Information Society Project. The OSIS was divided into four panels: (1) technology, (2) economics, (3) politics and (4) law. From my own perspective, while most people focused their attention on standards' impact on US technology vendors, a small but high level group of participants were deeply engaged in the global debates about how standards and intellectual property can be barriers to trade. In one sense, the collegiate discussions over the central question of whether non-disclosure of patent assets in standards constituted a barrier to trade served as a "proxy debate" between China and United States in lieu of actual consideration of this subject at the World Trade Organization.

In the economics panel several speakers including Rishab Aiyer Ghosh (MERIT) and An Baisheng (Ministry of Commerce, People's Republic of China) stressed the "network effects of standards which they asserted could serve as entry barriers to new technologies. Rishab Ghosh provided the example of the QWERTY keyboard as an example where a standard lead to path dependence. Furthermore, he noted that where

a network effect exists, often a natural monopoly is the best way to capture its value. An alternative involves separating the technology from the producer, this provides competition among vendors. The existence of rights such as IPR over a standard allow control/rent-seeking over the standard. Standard bodies try to limit this behavior. From an economic perspective, an open standard involves the coexistence of competition for the standard with a natural monopoly for the technology itself.

An Baisheng reiterated the idea that standards have network effects and highlighted the fact that parties with relevant IP assets in a standard would have the propensity to maximize their royalties through rent-seeking behavior. An raised the issue of disclosure of IP assets-e.g. what is the real cost of disclosure. In this context, he referred to China's submissions to the WTO Technical Barriers to Trade (TBT) committee including a paper (G/TBT/W/251) entitled "Intellectual Property Right (IPR)Issues in Standardization tabled in May 2005 and a paper (G/TBT/W/251/Add.1) tabled in Nobember 2006 entitled "Background paper for Chinese Submission to WTO on Intellectual Property Right Issues in Standardization (G/TBT/W/251). These timely papers raised a firestorm of controversy at the WTO with many Members wary of the subtle argument raised by the Chinese submissions, namely, the question of whether IPRs embedded in standards could be considered a technical barriers to trade, anathema to certain WTO Members (guess who?).

In the politics panel, Mr. Huang Rengang, Minister Counsellor of the Permanent Mission to the WTO, People's Republic of China) did not beat around the bush when it came to the question of open standards unequivocally declaring "I am a big fan of open standards" and noting the efforts to silence the discussion of open standards in international fora in Geneva. Mr. Huang's presentation focused on three elements:

  • "What role can international organizations like WTO play? When China tabled view on IPRs and standardization, there was divided opinion of this in the WTO. There needs to be more discussion of standards at the WTO".
  • "How developing countries can play a role in the development of open standards? How can countries improve their effectiveness in developing standards? So far, developing countries have played a limited role. Developing countries need to do their homework. The current TBT Agreement poses limitations on these discussions".
  • "How China has contributed to standards development, from a personal perspective. In ancient times. Chinese shared inventions such as paper and gunpowder. Our ancestors embraced the idea of sharing knowledge. Consider how different things would be if our ancesters guarded the secret to making paper and gunpowder".
During the intitial set of Q&A in the politics panel, your blogger asked Mr. Huang, "Do you see other fora as appropriate venues for discussion of open standards outside of the WTO TBT committee? How do you see its future within the TBT"? This question was grounded in KEI's previous calls for WIPO to

[a]ddress the problems faced by standards organizations
, and in particular, those that involve essential interfaces for knowledge goods, such as software or Internet standards.
Mr. Huang Rengang responded by saying that when China submitted its standards papers to the WTO, questions were raised about its motivations including the "wanting to pay less royalties." Other Members decried that standards and IPR issues were not appropriate for agenda of the Triennial Review as it would imply that IPRs are barriers to trade and call for a revision of the TBT. Mr. Huang concluded by stating that the discussion of "open standards is unstoppable".

Victoria Espinel (Assistant USTR, Intellectual Property & Innovation, Office of the U.S. Trade Representative) informed the audience that the USTR recently included created a bureau on Intellectual Property and Innovation. She noted that standards were important to innovation policy and reminded us that the WTO has adopted guidelines for on how standards should be set and implemented. Ms. Espinel asserted that standards should be set in an open, transparent and inclusive manner. With respect to IP rights, she held the notion that they were sacrosanct and inviolable. According to her, one of the functions of the IPRs was they promote innovation. Usurping them when they are convenient she contended, was not the way to go. IPRs should be reassessed if they are not promoting innovation. She observed that the underlying question in this debate was the fear of competition with the looming threat of job loss. While advocating free trade Ms. Espinel acknowledged the challenge in balancing the benefits of competition with the interest of some segments of society who could lose out in the short term.

In collegiate exchange following her presentation Mr. An Baisheng of China questioned Ms. Victoria Espinel as to why China received so much pressure to drop their request to the WTO TBT committee. Ms. Espinel responded diplomatically by stating that she was not involved in the TBT negotiations referred to and that perhaps the WTO TBT negotiators were anxious in dealing with a topic (IP and standards) in which they lacked specialized expertise.

The superb quality of the Yale ISP Open Standards International Symposium in terms of content and the caliber of the panelists is testament to the efforts of the organizers, especially Laura DeNardis. Although the tenor of the open standards debates in this New England idyll remained cordial, they belied the greater stakes; one is reminded of James Carville's dictum "[t]he economy stupid". With antecedents in the WTO, WIPO and the Internet Governance Forum, this symposium underscored the point that open standards are indeed ready for prime time and are coming to an international forum near you and me.

Friday, January 26, 2007

WHO Executive Board discusses Public Health, Innovation, and Intellectual Property (IGWG)

Thiru Balasubramaniam
January 26, 2007

The topic of of public health, innovation and intellectual property (4.14) was discussed today at the 120th Session of the WHO Executive Board. In short, the Kenya Switzerland resolution submitted on Monday, January 22 was withdrawn by Kenya with the intention that it will be re-opened at the World Health Assembly (May 2007). Thailand proposed a draft Decision for further strengthening the IGWG process, but ultimately its status was deemed as an informal document (the Secretariat notified Thailand that for it to be considered as an offical document, it would need to be submitted in all 6 UN langages)"). What was acutely disappointing about the discussions that NGOs were not permitted to make oral interventions.

From our perspective, it remains incumbent upon the IGWG Bureau in collaboration with the WHO Member States and the WHO Secretariat to address the central question posed by WHA 59.24, namely,
securing an enhanced and sustainable basis for needs-driven, essential health research and diseases that disproportionately affect developing countries, proposing clear objectives and priorities for research and development, and estimating funding needs in this area;
(eg "Who pays for what and how").

What follows below are my notes on this morning's session.


11:30 AM

Chair (Fernando Antezana, Asesor Principal del Despacho, Ministerio de Salud Y Deportes, Bolivia):

Chair: We are going to proceed with agenda item 4.14. Public health, innovation and intellectual property.

Brazil: I have no objections to the documents prepared for this meeting. I particularly like document EB 120/4 (Matrix) which details work that the Organization will carry out and work carried out by other organizations.

Resolution 59.24 was very important in terms of its importance and content. Through this resolution and the informal consultations leading up to the passage of the resolution, we created the spirit of Geneva which was highly positive.

How was it possible for us to reach consensus in such a tranquil way. We did this in the spirit of Geneva. We hope this same "spirit of Geneva" will prevail. Unfortunately this was not the case in the first meeting of the IGWG. This did not bring honor to the WHO or to us. I'm not here to accuse anyone. The December meeting was ridiculous. I hope this will not be the end of the spirit of Geneva. I will not comment on the draft resolution now.

We need to discuss the process. How do we strengthen this?

Kenya: The attendees to the December IGWG were not happy with the process. A second meeting is scheduled for October which we are informed may be the last meeting. Kenya and Switzerland proposed and early harvest implementation. An informal meeting was held on Jan 24. There have been intense consultations afterwards. There has been consensus to strengthen work of the group.

We would like to request consideration of this resolution be postponed. We request WHO to expedite the work of the Group. The CIPIH recommendations must be thoroughly considered. We look forward to the work of the global plan of action.

Thailand: We wish the EB to focus on the process of IGWG (spirit of Geneva). We should look at the text of WHA59.24

There is no single message from the WHO Secretariat or the IG Bureau on what Member States should contribute in their official submissions Our interpretation: What should be the global plan of strategy? We need to look at 'priority setting' 'estimating funding needs'.

We feel that the end of Feb 2007 is too tight for submissions. We want a delay. We would like to thank SEARO Regional Director for holding consultations before the WHO IGWG.

Thailand takes note of progress of early implementation.

In order to keep the spirit of Geneva, some Member States felt the need to maintain and accelerate the momentum. The Board should not in any way interfere in the work of the IGWG.

We would like to propose a DECISION for consideration.

"The EB decides to request Secreariat to implement WHA59.24 at all levels by providing support to Member States in contributions by March. Synthesis....this would go to the regional mechanism in preoparation for the 2nd meeting." [TB: I missed the rest of this. I intend to get the full text later today]

Portugal (on behalf of the EU): The first session of the IGWG needs a timely and substantial follow up. We hope many States submit their contributions. The iGWG is the proper forum on this topic. In order to continue the IGWG process, we look forward to background papers from WHO Secretariat on 8 subjects including a "health gaps' matrix and a "key stakeholder" matrix. We need further clarification on the role of experts.

With respect to the WHO progress report,

The EU has taken action on (TRIPS flexiblities-compulsory licensing for medicines, clinical trials program, through full annual reports to TRIPS Council on technology transfer, fully respecting our partners' rights in including compulsory licensing in their bilateral trade agreements.

We have new funding stream for neglected diseases, ppps. Advocates cooperation between WHO, WTO, WIPO, UNCTAD and UNESCO.

We fully agree that we need a strong preparatory process.

Portugal (in name of Portugal): We have the EU presidency in the next semester. We offer our help to Member States to help facilitate the process.

United States: We share concerns of some that outcomes of the first IGWG were not as ambitious as we hoped. We need a strong preparatory process. It is not clear to me what this preparatory process should be.

Regretably, the decision of Thailand was not made to avalaible to us. We would have to study the decision It does not seem to be very specific or point a way forward.

We look forward to receiving the June document. I'm not sure what "regional mechanisms" mean. Does this imply special consultations or regional committees? This is a little vague. Is Thailand prepared to elaborate on this? We need to see the document in writing as on official doucment of the board. Can the WHO Legal Advisor provide guidance on what role the EB has on the IGWG (WHA59.24 requires IGWG to report to WHA through EB). A formal Decision may not be necessary. EB members may just submit views to the Boardand the DG can respond accordingly.

Chair on behalf of Bolivia: This is a very important and delicate issue. It may be premature to consider a resolution now.

Namibia: Discussion on this will not be prolonged. I would like to note that without limiting Member State interventions, we are taking too much time. Our earlier understanding is not being respected.

Switzerland: We fully align ourselves with statement of Kenya on behalf the African Region. We also reiterate Brazil's "spirit of Geneva" plea.

Chair: NGOs cannot speak at this time.

WHO Legal Counsel: The IGWG will provide progress reports to the WHA through EB. IGWG reports through the EB. This entitles the EB discusses (if it sees fits) and points recommendations to WHA. However, the EB can't make decisions. The IGWG is asubsidiary body of the WHA. A request from EB to Secretariat facilitate process is ok. However, it can't change [TB: or do violence] to the original resolution.

US: I don't want issues of process to block forward movement. I would repeat what I said earlier; there should be some time for interested delegations to speak on the ideas (mentioned by Thailand and Portugal).

Thailand: Our document is ready to be circulated. Can we circulate it?

Chair (Secretariat official interrupts to tell Chair Antezana to tell him something about "translations")

Secretariat (ZUCKER) presents an 11 point plan including:
Look forward to Feb comments (including on experts)
Paper ready by July
In house task groups in HQ and regional offices
DG consultation with Bureau will identify pool of experts.
Regional consultations (Aug or Sept) and will identify experts.
IGWG final session Oct 07.
Bureau will meet as needed
Secretairat will continue to implement CIPIH recs addressed to WHO.
WHO Sec will set up website for MS to contribute comments on a voluntary basis on how they implement

European Commission: Please include regional economic integration organizations on circulars.

Brazil: I like the language of Thailand. It could use some further crafting.

Chair: Proposal by Kenya is accepted. [TB] The Kenya/Switzerland resolution is postponed.]

Australia: Point of order. What are we doing with the Thai proposal?

Chair: The idea was to have Thailand circulate document (not as an official document).

Secretariat (Kean): It needs to be circulated in 6 languagues for EB to consider as an official document.

DG Margaret Chan: We should follow IGWG process requested by WHA. It is very welcome that EB members make suggestions and give ideas. The informal Thai paper would be one such suggestions. We will take on board all your suggestions (written or oral). I pledge support for the IGWG support as I have seen how important it is for you.