Notes from WIPO Broadcast Treaty and Patent Harmonization discussion

Blogging WIPO: 2006 General Assembly, Day 3

Day 3, 27 September 2006

Notes taken by:

Ren Bucholz, ren at eff dot org, Electronic Frontier Foundation [RB]

Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB]

Teresa Hackett, teresa dot hackett at
eifl dot net, Electronic Information for Libraries [TH]

[NOTE: This is not an official transcript. It's our best effort at providing a faithful set of notes of the proceedings. Any errors and omissions are unintentional and regretted.]

-=-=-=-=-
Copyright-Only Dedication (based on United States law)

Except where indicated in relation to specific text in the following material, the person or persons who have associated their work with this document
(the "Dedicator") hereby dedicate the entire copyright in the work of
authorship identified below (the "Work") to the public domain.

Dedicator makes this dedication for the benefit of the public at large
and to the detriment of Dedicator's heirs and successors. Dedicator
intends this dedication to be an overt act of relinquishment in
perpetuity of all present and future rights under copyright law, whether
vested or contingent, in the Work. Dedicator understands that such
relinquishment of all rights includes the relinquishment of all rights
to enforce (by lawsuit or otherwise) those copyrights in the Work.

Dedicator recognizes that, once placed in the public domain, the Work
may be freely reproduced, distributed, transmitted, used, modified,
built upon, or otherwise exploited by anyone for any purpose, commercial
or non-commercial, and in any way, including by methods that have not
yet been invented or conceived.
-=-=-=-=-

WIPO GA 2006 Day 3

10:35 Start

* Chair: I'd like to start with Agenda Item 9 - Protection of Audiovisual Works

* DDG Rita Hayes: References WO/GA/33/3 and says that progress has been made, but that they are not yet finished. The chair will now set up national and regional meetings to further this work.

* Chair: Looks for motions

* El Salvador: We support further work on this item.


* Mexico: We give our broadest support for the continuation of the agenda of the protection of AV performances. It should be dealt with in the future by this organization.

* Chair: I would like to draw your attention to page 2 para 5 document WO/GA/33/3 This calls for national and regional meetings to be decided by WIPO. Can I ask that it is so decided? Decided.

I propose to consider item number 10 protection of the rights of broadcasting organizations.

* Rita Hayes: Doc WO GA/33/4 - Following the decision of the 2005 GA, we held that there should be two more meetings of SCCR to finalize a basic proposal in order to enable this GA to recommend the convening of a diplomatic conference in December 2006, or at a date to be decided at this meeting.

In the doc before you, there is a revised version 15th SCCR's proposal. Outlines proposal including a diplomatic conference in the first half of 2007:

1. The diplomatic conference will be convened from 11 July-1 August
- objective is to negotiate and conclude a treaty including cable casting organs
- scope confined to broadcast and cable cast in the traditional sense

2. Revised basic proposal will constitute the basic foundation with the understanding that all delegations can make additional proposals at the diplomatic conference

3. A special 2 day meeting to clarify outstanding issues will be convened in addition to the prep meeting in January

4. There will be regional consultations hosted by member states

The decision before the delegates today is whether to approve the diplomatic conference and it's attendant preparatory work.


* Chair: I open the floor for comments.


* European Community (Tilman Lueder): [Note: speaking as an IGO] We appreciate all of the open and forward-looking work on this topic. I believe that we have put the building blocks in place to allow for a successful diplomatic conference.

We would like to stress our commitment to the work of the SCCR that binds us all as we sit in the GA. We have discussed many facets of this. The work cannot and should not be ignored. We fully endorse the recommends of SCCR/15. All the building blocks are in place for a diplomatic conference which should be held in the agreed time frame as recommended to this GA.


* United States (Jule Sigal): The 15th SCCR set the stage for the GA to schedule or consider the scheduling of a diplomatic conference.

We believe that the scheduling a DC is neither timely or appropriate. The text of the basic proposal is not stable. There is no consensus and wide differences on a range of basic items such as scope, exceptions and limitations, and TPMs.

If you look at the consolidated text two years ago, it had 89 pages and 28 alternative text sections. The current text, called the basic proposal, is 108 pages long with 47 alternatives.

We are concerned that a diplomatic conference to consider this document at this time would not be successful because there is so much to be resolved. In fact, many countries left the last SCCR feeling uncomfortable about the convening of a conference at all. In our view the treaty on protection of broadcasting organizations should be the subject of more work.

We stress that in these further necessary expert meetings we would *NOT* seek to broaden the scope to netcasting or any of the new services as discussed in the standing committee. We would leave these on a separate track.

Unfortunately, the SCCR took premature action which we did not and cannot support.

Further expert meetings would help Member States come to a better understanding that would provide a diplomatic conference with a much greater chance of success than we have now.

* Japan: A broadcast treaty has fundamental importance. It also contributes to appropriate protection of neighboring rights and anti- piracy measures.

We strongly support the objective of this treaty which has been intensively discussed since 1998. The discussion has matured and the time has come to reach a conclusion.

As a result of the three SCCRs this year, we agreed to hold a diplomatic conference. The convening of a diplomatic conference should proceed without further delay.

We support the proposal of the Secretariat which was agreed at the 15th SCCR. We can clarify substantive issues at the expert meetings. We expect strong leadership from the chairman with the support of members.


* Croatia (on behalf of the regional association of Baltic states):
We welcome the decision to launch a diplomatic conference. It marks a milestone in our discussions. Further work on the draft basic proposal will be needed. The work of the prep committee will hopefully bring the agenda to the desired maturity.

Our group agrees that the discussions undertaken at SCCRs underline the need for a treaty. We appeal to Member States to approach the exercise constructively to enable the successful outcome of the conference.

* Nicaragua: We would like to offer our support for the convening of a diplomatic conference in 2006 or 2007.

* Mexico: We emphatically affirm our wish that a diplomatic conference be convened in 2007. The work that has been done in SCCR has been done with much dedication and thoroughness, taking into account diverse opinions. THis is why we accept the opinion of the committee at its last meeting.

* El Salvador: We would like to express our support for the decision reached at the 15th SCCR to convene a diplomatic conference this year or next.

That said, there are still some items in the draft that need to be clarified. The diplomatic conference should be able to sort those points out and come to acceptable conclusions for all members of this organization. We support the convening of a diplomatic conference.

Pakistan: We are of the view that the holding of a *successful* diplomatic conference is more important than holding a diplomatic conference.

We are of the view that a diplomatic conference, if it is to be a success, must be preceded by intensive preparatory work, not just the two-day conference in January.

There are many concerns amongst delegations that need to be addressed. We recommend that the duration of the January 2007 meeting may be extended beyond the two days limit. If there are still concerns, more such meetings should be held between January and July.

India: The SCCR, which met in September, did make a recommendation to the GA to hold a diplomatic conference. Throughout the three SCCRs that have been held since last year, we have had intensive discussions on the topic.

We are happy to note that the scope as it stands now has been limited to the broadcasting and cablecasting organizations and that netcasting and webcasting have been left out. Barring this forward movement, all other issues - and I repeat *all* other issues - have been left unresolved.

Even in the last SCCR, the Indian delegation pointed out that convening a diplomatic conference is important, but its success is even more important than merely convening a diplomatic conference. The building blocks are there, but the stumbling blocks are also in the text of the basic proposal.

It is not the contours of the treaty that should be discussed in the diplomatic conference, but the details. Unfortunately as we stand today, there is no consensus on the broad contours of the treaty. The basic proposal has contradictions that would suffice for the diplomatic conference not to see the face of success. We urge more deliberations, more formal meetings of the SCCR to enable member states to resolve outstanding issues and the inherent contradictions in the current draft.

Moreover, the proposed 2-day meeting is neither fish nor fowl. We would like to get clarification on nature, scope and validity of 2 day January meeting. At the SCCR we raised questions about its scope.

We must hasten slowly to a diplomatic conference to iron out inherent contradictions.


* Norway: Our general position is that related rights should be as similar to copyright as possible. RR holders should be treated on an equal footing. Therefore Norway favours the convening of a diplomatic conference and thereby the conclusion of the updating of the protection of RR holders.

It is evident that the project is ready to be concluded. Not much can be achieved in more meetings. In 2004, the GA urged the acceleration.


* Uruguay: This delegation understands that there is no agreed and no consensus text in the current draft from SCCR. We think that it would be impossible to have a successful diplomatic conference without more expert meetings and extensive work.


* Mongolia: We support the basic aims of the treaty and we would support the convening of a diplomatic conference.


* Chile: In the SCCR meeting in September, we said that the convening of a DC would be premature at this time. The state of play is insufficient to convene a DC right now. At the SCCR, the delegate of India simply reflects the fact that there was simply no consensus on anything.

In that meeting, many delegation expressed their doubts about procedural and substantive issues, plus calls to examine the development aspects of the treaty.

We support further SCCR meetings and prefer it to the be General Assembly of 2008 which recommends the convening of a DC. We favour the inclusion of minimum L&E.

Lastly, we welcome the point made by the U.S. that they feel the negotiations should be limited only to the protection of traditional broadcasting.

At the last meeting of the SCCR, much progress was made to change the focus on the treaty.


* Canada: We certainly support the rights of broadcasters and we would support a successful treaty. As others have noted given the wide range of alternatives and view, we would suggest that it is premature to hold a Diplomatic Conference. More work is needed to clarify the scope and substance of a successful treaty.


* Kyrgyzstan: We would support the convening of a DC on broadcasting including cablecasting organizations in the traditional sense of the term. We need thorough work by the prep committee if it is to be successful. We support convening the conference on the said dates.

* Iran: The protection of the rights of broadcasting organizations is important but the implications of the treaty may be different for different Member States
In the last SCCR, the incorporation of all Member States viewpoints was not clear.

Regardless of the substance, the procedural matters should be clarified in a transparent manner. The process of a Diplomatic Conference is separate from the work of the SCCR. We express our readiness to continue constructive discussion on the rights of traditional broadcasting organisations and to exclude all references to webcasting.


* Ukraine: We believe that this is an important area of IP. We are thinking of cable and satellite broadcasting in the Ukrainian law.

We support the proposal of a thorough review. The sooner we convene the conference, the sooner we protect the rights of broadcast organizations. We believe that the SCCR does, however, need to hold more meetings and to think about adding Internet transmissions as well.

* Azerbaidjan: We consider that a the protection of the rights of broadcasting organizations is difficult and sensitive. We would support the convening of a Diplomatic Conference in August 2007.


* Indonesia: We are of the view that the GA should consider wisely the recommendation of the SCCR to convene a diplomatic conference. My delegation has concerns on substance and procedure.

We would like to ensure that orphaned and public domain works are not compromised when we protect against signal theft.

It is clear that there is wide divergence of views.

The scope should be confined to broadcasting and cablecasting in a traditional sense.

There is a lack of evidence that the protection for broadcasting and cablecasting is necessary for developing countries. We would like to see a treaty that will not compromise the flow of information, A2K, freedom of expression and cultural diversity. We are very concerned that the SCCR recommended the convening of a DC despite strong reservations by Member States.

We strongly suggest that you seriously consider these concerns. We propose that that the GA could postpone the convening of the DC from 2007 to 2008.


China: We thank the SCCR for its constructive work on this issue, and would like this work to continue.

We consider it necessary to convene a DC in order to discuss the issues, and we believe that these discussions can take place in the diplomatic conference and attached preparatory meetings.

We should fully discuss the issues in a flexible manner which reserving differences.

Russian Federation: We support a diplomatic conference in 2007. We do not object to a special meeting in January where we can address some of our concerns.

We hope that states will be able to work in a constructive spirit to prepare for a diplomatic conference.


* Singapore: In SCCR/15 we supported the convening of a DC in 2007. We continue to believe that there is sufficient time to consider all the issues.

However, we recognize the serious concerns expressed by many nations and the need to have a successful conference. We need not be fixated on the precise dates of a convening of a Diplomatic Conference but we must seize the impetus to convene a DC as quickly as possible.


* Nigeria (on behalf of the African Group): The Group submitted its viewpoints during the last SCCR/15. We realize that it is an important process. We have supported a DC in principle subject to certain conditions.

To enable a smooth transition frof the SCCR to a DC, the DBP should be cleaned up in order to remove certain ambiguities and with a view to remove as many alternative articles as possible and to reduce the risk of failure.

We also express a desire to protect a number of public interest issues:

1. A2K
2. Free and unfettered flow of information
3. Protection of cultural diversity
4. Protection of performers
5. Impact assessments especially with regard to technological measures

We would like Member States to inform us how they plan to implement the TPM provisions of the treaty.

The Group also indicated that the inclusion of webcasting was not essential to the process.

We recognize the views of the US delegation that the proposed treaty should be limited to traditional broadcasting.


* League of Arab States:
Observer with IGO status

The basic proposal must be a balanced one.
The Arab countries do not oppose the convening of a DC. We will examine the broadcast treaty at a meeting in 2007.


* Morocco: I wish to express my support for the work of the secretariat over the last year. Throughout these SCCR meetings, we have striven to reach consensus on many of the issues pertaining to these rights. These rights are not new, nor are they at a higher level. They simply address the problem produced by new technologies.

We submitted a compromise solution, namely, to call for two further meetings. We do not have to settle everything before a DC. Time is now ripe to convene a DC.


* Algeria: We are not opposed to the convening a DC in 2007 without deciding on a precise date indicated in the draft recommendations. If a review of the dates help us to move away from the divergences in the text,

These questions of public interest, access to knowledge, scope of this treaty deserve being defined. We should talk about the legal framework for this treaty. We are in favor of convening of DC, but we are in favor of a DC that will be successful.

* Croatia (not speaking for regional group): We have sympathy for those arguing against a diplomatic conference at this stage, we are of the opinion that all of the open loops in the doc are political and not technical.

We strongly believe the outstanding issues can be solved at dip not experts level. That is why we align ourselves with the convening of a DC

* Macedonia: Support convening of DC in 2007.

* Kenya: Would like to associate herself with the statement of Morocco. There is certainly more work to be done, and we believe that this work can be done at a diplomatic conference. It is clear that delegations recognize the need to have a treaty to protect broadcast organisations. Kenya supports the convening of a DC.


* South Africa: At WSIS, we committed ourselves to putting public interest issues at the heart of our work on technology.

We maintain our position of 13th and 15th SCCR. We would like to integrate people friendly principle into this treaty.

The proposal does not provide clarity on what this treaty is supposed to protect. There is a need to strike a balance between the needs of broadcast organisations.

* Chair: two more speakers then a cut for chair's comments

* Veneuzuela: We would like to submit its concern (because of what happened in the 15th SCCR). There was a total lack of consensus and plurality, following not much of a discussion of a text that is full of inconsistencies. We are concerned that the NGOs were not given the right to speak.

Under these conditions, we believe that there is a high probability to fail. It is necessary to achieve a result in a more democratic manner.


* Honduras: Our delegation is in favor of convening a diplomatic conference in the next year. This is, of course, dependent on resolving the concerns expressed here.

We should reduce the number of alternatives in the text, which should reflect the public interest.

We should make sure that the treaty is limited to signal theft approach.


* Chair: Almost 40 delegations spoke reflecting its importance. What we are expected to do is approve the recommendations of the SCCR. Based on the discussions, at this stage in the Chair's view, we are NOT in a position on consensus on recommendations. A large number of delegations were in favor but a number had concerns.

Based on the discussion, it is the chair's view as of this morning, I don't think we are in a position to say that we have a consensus on the recommendation. I don't think it would make good use of our time to keep the floor open at this time.
We will not close this item but we need more informal discussions.

I feel that we need some more intensive and informal discussion to hash this out but at the same time keeping the integrity of the recommendation. I propose to have informal discussions some time during the day.

The Chairman [Jukka Liedes] of the SCCR is here and I would like to seek his assistance in this endeavour.

I'm still hopeful we can reach a consensus decision. It would be difficult to enter a DC if some delegations felt unable to join in a consensus.

Sometime Mr. Liedes could have some informal consultations on my behalf to see where we stand this afternoon. I will have informal consultations this afternoon on another matter.

I am not closing consideration and we will see where we will stand this afternoon. Mr Liedes will arrange some informal consultations to see if we can maintain and structure and integrity of the recommendation.

We temporarily suspend consideration of item 10.

------------------

Item 11: Matters concerning the advisory committee on enforcement.

* Rita Hayes: WO/GA/33/5 Matters concerning the advisory committee on enforcement. The first part takes into account what has been done in the enforcement advisory committee.

I ask you to take note of Page 2 item 6 and the Annex (last page following page 12).

* Chair: I see no requests for the floor. Can I take note that the GA adopts the decision as so requested? So decided.

I would like to return to Item 6 proposal by Group B delegation of Switzerland

* Switzerland: There is not much to report, no negative feedback so far. The Asian group is still consulting within its group.

* Chair: I haven't heard any negative feedback either.

* Tanzania: We need to be on record the Joint Inspection Unit has been observed as a useless outfit.

This isn't just our view, but Group B's view as well going back as far as the 1970s

But the irony is that as far as WIPO is concerned, that in WIPO is considered to be a useful outfit. What an irony. I just wanted to put that on record.

* Chair: 15 min break before item 12.

Item 12 (Patent Law Treaty, Frances Garry): WOGA/33/6, gives history- so-far bit.

* Chair: Reminds us that the task before us is to set up a workplan for the SCP for the following year.

* Switzerland (on behalf of Group B):

* UK: The joy of closing the meeting fell to me.

Expands on what VDG Gurry said...
We got to a point where we had a package. We had 9 items and 4 other items.

There was agreement that they should be talking about those 13 items and no more. We then broke into two camps - those who wanted to make subgroups for the sake of setting priorities, and those who wanted everything to be evaluated on equal footing.

There was no progress in relation to those. I also asked if there were other proposals to make a July meeting worthwhile. At that time, there were none so we decided it was not viable for there to be another meeting.

* Croatia (on behalf of CEE and Baltic States):

We want to express our concern on the state of play within the SPLT.

It is frustrating that despite useful discussions and frank exchange of views, we made virtually no progress since the last GA and consequently failed to fulfill our mandate.

Our work is vital to the success of the SCP. It will improve quality, reduce costs for users, reduce costs for patent users, increase communication and cooperation between WIPO members' patent systems.

We should avoid making linkages that will negatively affect the process.

* Morocco: We recognise there are differences. We favour the harmonisation of patent law. We should continue to work to achieve a compromise and a balance.

* Chair: We have to conclude our morning session. We will continue the debate on this item at 15.00.

* Switzerland: Group B meeting at 14.30 in Room B

-- BREAK --

[RB: The following countries made interventions, but our note-takers were attending to other business at the time.]

Finland (on behalf of EC):
Algeria:
China:
Malaysia:
B?? Bhutan?? [RB: two countries to Brazil's right]:
Japan:
US:
Indonesia:
Argentina:


* India: We need a new method of proceeding rather than the hackneyed way in which we have been proceeding.


* Iran: In our opinion there was a constructive discussion during the 3 day meeting of the SCP. The informal meetings gave us the view that work on an SPLT was premature.


* Ecuador: The proposal of the GFOD is highly viable.


* Cuba: We consider that the future work of the SCP should include the interests of developing countries and should include inter alia L&E, prior informed consent and country of origin.

The development of patent law is not always to the advantage of dev countries.


* Pakistan: This assembly should provide guidance to the SCP rather than going into details.

1. Public interest aspects of the patent system
2. Quality of patents


* Brazil: Brazil understands that WIPO is not a multilateral patent office. Dev should be a core objective of this organisations. Harmonisation of patent law cannot take place if it is not in the interest of the majority of members, especially developing countries.

Lots of issues were raised in the open forum that should be mainstreamed into the patent system.

No reduced package can be the way forward on the SCP.

There is a growing critique of the patent system worldwide in IGOs, NGOs, academia on all of the issues we are discussing. Even institutions e.g. OECD are producing relevant work in this area and are coming to mixed conclusions regarding the impact of the patent system on economic growth and development and social issues in general. This reality should not be ignored in the SCP so that a more profound debate can be held in that body.

The agenda on development contains a chapter on norm setting that is very relevant to the SCP. The GFOD has put forward a work plan of nine issues that we consider important in the spirit of inclusiveness the DG has stressed in this Assembly.

We understand there is an issue of impact assessment that needs to be provided to member countries. We cannot proceed blindly without studies on the impact of the patent system.

A member has raised the issue of patent quality. For developing countries there is also the issue of quality of life of the inhabitants. I cannot erode the quality of life of people around the world.

* Tanzania (Khamis Suedi): It's clear that there are problems here, big problems.

Some want a reduced package and others have stressed the inclusion of 9 issues. The dilemma we see is how we add a work plan.

We may see a further hardening and stratification of positions.

* Switzerland: We place great importance to this topic.

There are technical deliberations that could be made in the context of the SCP. We hope that it will be possible to deliver a work program that can be discussed.

* Chile: The reduced package which has been put forth more than once- exclusion is not correct.

Chile supports an approach that includes all issues including those mentioned by Brazil.

If we're trying to harmonise the situation, then we obviously need to include those issues as well.

* US: Apologies for coming back to the floor on this matter but it is obviously of importance to this delegation.

WIPO, as a specialised UN agency, has within its mandata the need to improve the IP system, streamline and simplify the situation so it can be used effectively to promote development throughout the world.

Many of the issues such as anti-competetive practices, alternative models of innovation raise matters that go well beyond expertise of SCP and maybe beyond WIPO itself.

We cannot support a work program that would not facilitate concrete work, and would instead provide no prioritization to aid in working through the many political issues lying in wait. We do not wish to have meetings within meetings. Which would be a waste of WIPO's limited resources and delegations' time.

If we cannot come to a workplan this week, perhaps we should wait until next year.


* Francis Gurry: I respond to the question from Argentina.

We have planned a series of colloquia to delegations with a proposed schedule of dates and topics. They will take place between October 2006 and September 2007 and will be informal and free with no decisions taken.

They include topics such as research examples, standards and patents, flexibilities, technology and policy, national strategy for innovation and patents for technology.


* Russian Federation: We do not intend to repeat our disappointment since everyone is likely disappointed with the SCP. THese are not serious problems in front of us - these are challenges thrown up by society and the outside world.

We currently have many proposals which would cancel one another out.

The IP system is a combination of protection, enforcement of rights and [one other thing he didn't go on to mention]. We can go on two parallel coaches.

On protection against piracy, planes have crashed because 60% of its parts were counterfeit. There is one more key to open this door (win- win situation). It is to look at this through our neighbors' eyes.

I'm suggesting that we should move on these three aspects at the same time.


* Chair: What many delegations have said is their disappointment. Our main task is to establish a workplan. The chair has noted the suggestions. I can't honestly say there is a common ground on these suggestions.

What I would like to propose is, we are obviously not in a position to take any decision now. We have to undertake informal consultations.

I am willing to attempt something. We suspend consideration of this item now. Any suggestions are welcome, preferably in writing.

After this we can have a working text to guide us to reach consensus in a further round.

I said I would be holding informal consultations on Development Agenda. I was wondering if we could maybe could go ahead and look at item 14 as Mr Gurry is here.

* (WIPO Secretariat: Francis Gurry): I refer to document WO/GA/8 Information document concerning internet domain names. There are over 100 million internet domain names registered throughout the world. Conflicts are managed through the uniform dispute resolution process (UDRP)

Today, WIPO has dealt with over 9,000 cases involving 17,000 names. There is a legal index, guiding principles based on jurisprudence.

* Chair: WO/GA/33/8 - Para 19. Do we take note of these contents? Ok.

US statement on broadcasting at WIPO General Assembly

United States:

The 15th SCCR set the stage for the General Assembly to schedule or consider the scheduling of a DipCon.

We believe that the scheduling a Diplomatic Conference is neither timely or appropriate. The text of the basic proposal is not stable,

There is no consensus and wide differences on a range of basic items such as scope, exceptions and limitations, and TPMs

If you look at the consolidated text two years ago, 89 pages and 28 alternative. The current text, called the basic proposal, is 108 pages long with 47 alternatives.

We are concerned that diplomatic conference to consider this document at this time would not be successful because there is so much to be resolved. In fact, many countries left the last SCCR feeling uncomfortable about the convening of a conference.

In our view the treaty on protection of broadcasting organizations should be the subject of more work.

We stress that in these further nec expert meetings we would *NOT* seek to broaden the scope to netcastsing or any of the new services as discussed in the standing committee. We would leave these on a separate track.

Unfortunately, the SCCR took premature action which we did not and cannot support.

Further expert meetings would have Member States come to a better understanding that would provide a dip con with a much greater chance of success than we have now.

WIPO General Assembly discussions on the Development Agenda

The majority of delegations indicated their support of a renewal of the PCDA process but it remained to be seen how the modalities (eg. how the solution should be structure) were implemented into a Decision. The Chair is expected to announce a Decision this either today or tomorrow.

---

Day 2, 26 September 2006

Afternoon Session

---

Notes taken by:

Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB]

Teresa Hackett, teresa.hackett at eifl dot net, Electronic Information for Libraries [TH]

Ren Buchholz, ren at eff dot org, Electronic Frontier Foundation [RB]

[NOTE: This is not an official transcript. It's our best effort at providing a faithful set of notes of the proceedings. Any errors and omissions are unintentional and regretted.]

-=-=-=-=-
Copyright-Only Dedication (based on United States law)

Except where indicated in relation to specific text in the following material, the person or persons who have associated their work with this document (the "Dedicator") hereby dedicate the entire copyright in the work of authorship identified below (the "Work") to the public domain.

Dedicator makes this dedication for the benefit of the public at large and to the detriment of Dedicator's heirs and successors. Dedicator intends this dedication to be an overt act of relinquishment in perpetuity of all present and future rights under copyright law, whether vested or contingent, in the Work. Dedicator understands that such relinquishment of all rights includes the relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in the Work.

Dedicator recognizes that, once placed in the public domain, the Work may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or non-commercial, and in any way, including by methods that have not yet been invented or conceived.


(WIPO-Sherif Saadallah):

Ambassador Rigoberto Gauto of Paraguay was elected chair.

The PCDA did not reach any consensus on a recommendation for consideration to this General Assembly.

On September 26, 2006 there was a proposal made by Kyrgyzstan.

Chair: We are faced with a situation where the PCDA was unable to reach a decision on how to proceed.

The fundamental issue is the basic one i.e. how can we proceed. I hope that our interventions can focus on this particular point and refrain from discussing the number of proposals on the table. Our task is not to address the 111 proposals but how to proceed on this issue.

How should we carry forward our work on this matter. Member States have the right to express their views on this subject.


Paraguay (Ambassador Rigoberto Gauto Vielman): Thank you to MS for honouring me with the chairmanship of both PCDA sessions.

PCDA met on two occasions this year. Bearing in mind that no consensus was able to be reached, a factual report was prepared.

I have held many consultations with delegations. My impression is that significant progress has been made. I hope that the best decisions can be made to adopt a DA programme.

Finally I would like to thank delegations who took part in the meeting of the DA and the Secretariat and support staff given to me during my chairmanship Muktar Jumaliyev (Ambassador of Kyrgyzstan) the Vice Chair.


India (Secretary Ajay Dua): This is one of the most important items for us in this meeting.

The debate on the DA started about two years ago.

While these discussions have shed much light, unfortunately we have not covered much ground.

We have two considerations:

1. The process to be adopted hereafter
2. The content thereof

1. There is no doubt that discussions must continue in a focussed and streamlined manner. We need to set clear guidelines for tangible results. We suggest that the GA decides on extending the mandate of the PCDA for another one year within which we can have two to three sessions.

In the first session, plan of action with phased proposals. We emphatically state that the Development Agenda should be accepted as a package.

2. We are faced with considering 111 proposals. However, when we sift through these proposals, we can combine proposals and eliminate repetitive items.

We have already clustered the proposals. All we have to do is carry out the above proposals for each cluster, coming up with about 25 proposals. All the aspects of the proposals should be studied by external experts in the field.

In short, we should adopt a scientific approach. There is a lot at stake and we have to succeed. We have to restore the balance where it it is believed that it has been distorted.

If we are able to install a robust development agenda, we can restore balance in the IP system.


Argentina (Ambassador Dumont): On behalf of GFOD, we have made substantial comments so I will not rehash them here.

There is no doubt that this exercise was as fruitful as we expected.

To some extent, we are all rather disappointed at the outcome. However, all delegations that took the floor yesterday highlighted the importance of the issue. There has been a constant overlapping of procedure and substance. I don't know if this has assisted us in the process.

In PCDA/2/2 we compiled the proposal in order to simplify analysis.

We understand Group B's request for clarity. We are open to consultations to see how we can make progress here.


UK (Ambassador of the United Kingdom of Great Britain and Northern Ireland):

We are well known to be development friendly. We are conscious of the lack of progress in this area while trade and development has been stalled in this town.

As mentioned by India and Argentina, we should endeavour to make a serious effort to make a roadmap of the plethora of worthwhile proposals submitted. I recall that some of us spent half the morning in a useful seminar with DG of UNCTAD to adopt a more forward looking and constructive approach with other organisations in this town.


Croatia (on behalf of central Europe and Baltic States): We agree that WIPO's role in development should be re-considered.

We recognize that IP is only part of the solution.

Our countries appreciate the work of WIPO so far in order for IP to become a tool for development, to promote research, technology transfer and to stimulate innovation. Our group has been supportive of the process, in a way that does not go beyond the mandate of WIPO. Some achievements have been made but the process remains blocked. Good will and readiness to compromise would have bridged our differences.

We support further discussions on the DA. We believe there are certain proposals that are ready for an early harvest.

The rest of the proposals should be discussed during future meetings. We believe that the chairman's proposals during the 2nd meeting are a basis for our future work. NOTE: there were no chairman's proposals from this meeting.

Our disappointment is amplified by a feeling that the solution is within reach.


Kyrgyzstan: For us and for other members, matters for a DA is very important and
topical for all countries regardless of their economic and social development. It cannot be restricted to certain areas such as technical assistance. We commend the activities of WIPO for assisting developing countries.

We support a constructive step by step approach and unremitting in its search for a solution.

Kyrgyzstan played an active part in the two PCDA's.

Kyrgyzstan endorses the work of the committee that was done under its mandate.

There is a need to renew the DA.

Guiding principle to take into account all proposals that have been made. We all wish to move forward on this. We have submitted a draft decision of the WIPO GA in WO/GA/33/G9

Preamble

1st paragraph

We think technical assistance would also involve capacity building.

2nd paragraph.

We consider that all proposals must be carefully examined and disseminated.

Operative part

1st paragraph. This committee will replace the PCIPD during its existence.

2nd para: 2 sessions in 2007

3rd para: report to GA in 2007 with recommendations for a DA


Indonesia: I reiterate the importance of the DA. This is a significant milestone to enable MS to implement IP that respects their stage of development.

My delegation still sees a wide space for all MS to move forward despite differences. Many delegations have expressed their willingness to support the process.

The GA should provide the PCDA with clear guidance to enable substantive discussion.

It is hoped that the PCDA would able to organize its work in a more efficient fashion. All proposals identified in the previous PCDA meetings should be included.

Streamlining the proposals should ensure that no proposals are excluded.

There should be an informal open ended consultation preceded before the PCDAs involving all stakeholders to serve as a confidence building measure. This would be followed by a formal meeting of the PCDA.


Nigeria (on behalf of the African Group):

We attach great importance to this particular agenda item.
All that needs to be said has been spelt out in previous meetings. What matters now is to embark on a course of action. Many of our members have introduced substantive proposals. The reasons are obvious and manifest.

We should agree on a targeting work programme on the DA.

The AG submitted an 8 point program for the GA. This was submitted in the general statement predicated upon careful assessment and driven by collective desire to make progress. It was devised following wide ranging consultations with civil society and other stakeholders. All 111 proposals should be discussed objectively and comprehensively.

None of the proposals should be ignored. There should be a rational approach to discussing the 111 proposals.

We have called for a renewal of the mandate of the PCDA.

We are gratified to hear such calls being reiterated by other MS in this august assembly. We are strongly recommending that this renewal option should be the only option to be considered by this assembly. We reserve the right to return to this issue.


El Salvador:

This proposal is a matter for strategy for any organization. We are very committed to the agenda for WIPO.

We are very committed to the idea of a DA for WIPO. We have a DA ourselves within our own planning system. All countries have to shoulder some responsibility for their own development, taking into account their resources.

The PCDA mandate should be renewed to move forward.


Brazil:

We fully support what has been stated by the Ambassador of Argentina (on behalf of the GFOD).

The DA was launched in the GA of 2004.

The DA is the most important agenda item in WIPO for the Brazilian govt. We know there are frustrations that we were not able to arrive at an agreement. We however have a positive view from listening to the general statements.

We see that practically all the membership have taken ownership of the DA and have expressed the desire to move forward.

The DA has already generated a change of culture in the attitude of members and the response of the Secretariat to proposals. We have identified a series of concerns in WIPO program and budget, and we have already perceived changes in the air that we believe is a direct consequence of discussions on a DA.

We would like to thank Amb. Gauto (Paraguay) for his efforts.

We would like to reiterate Amb Dumont (Argentina)'s comment that PCDA/2/2 is a good basis to proceed. It was an effort by the GFOD to streamline the 111 proposals.

However, we think it's important to refer to the broader documents WO/GA/31/11, IIM, PCDA/1/5 and PCDA/2/2.

If we simply look at the list of 111 proposal, one would not understand or comprehend the purpose or context.

We also refer to the many interventions at this GA on the DA e.g. Indonesia that show a clear support for a renewal of the process. Also interventions of developed countries such as the UK which indicates a very development friendly attitude by a developed country and willingness to accept the challenge of rethinking the attitude of the IP system in how it can reflect different levels of development.

I would like to refer to a question often asked by the DG of WIPO when he visits countries.

"What can I do for you"? We should move this DA forward. It's an all encompassing initiative.

DG Idris: We shall certainly engage and push. I appeal to you to lift the trust deficit with the Secretariat on this item. I am personally committed to make this process a success. But we need consensus and a mutual understanding of all delegations and constituencies.


Finland (behalf of the European Communities and Bulgaria and Romania):

WIPO has an integral role in incorporating development. We regret that the PCDA could not agree on recommendations, although there was support for the chairman's compromise proposals.

We look forward to the discussions of the DA and will engage in constructive spirit.


Mexico:

Particular importance should be attached to the Kyrgyz proposal.

What is our opinion of the DA? Is this a program. This cannot be settled over two years.

This is an issue that was dealt with in other agencies via a negotiating process. This is work in progress that can be sorted out in two years or reduced to a single document or programme. We are facing a global economy which is knowledge based. This is why it is important that WIPO deals with development issues. This is an issue that in our century requires ongoing dialogue. Apart from para 3 of the Kyrgystans proposal, it embodies the philosophy that we should be adopting. It cannot be seen as the property of a given region, country or group.

Development has to be seen as a commitment entered to by all MS.

We do not want to create a committee that has endless discussions.

The PC should report back to the assembly.

Pakistan: The DA is an issue of importance to all countries regardless of the level of development.

We believe that in this GA, we should agree on procedure rather than going into minute details.

We need a clear direction.

Cuba: We support Argentina's statement (on behalf of GFOD). We want to renew the mandate of the PCDA. Development should be part of the work dimensions of this body.


China: We have noted the cooperative spirit of discussion on the DA. It is an important topic of concern. Global economic integration is becoming stronger. Trade, technology and investment have bound countries together in an interdependent network.

At previous meetings the Chinese delegation has noted the insightful views put forth by all MS. The Chinese delegation agrees with the proposals of the Asia group and K.

It would provide a permanent forum for all parties to search for an approach to solve the development issue. As the specialised agency of the UN, WIPO has the ability to explore paths that can be adopted by developing countries. We welcome the views and undertakes to actively participate in discussions.


Chair: We have one hour and 10 speakers so I would please urge speakers to be brief.


Ecuador:

We would like to endorse the FOD statement. We agree that we should renew the mandate of the PCDA. Discussion should include all proposals submitted. Document PCDA/2/2 would be a good basis for discussion.


Japan: We have been promoting IP in a development oriented and pragmatic manner.

For example, Japan provides $ 2.5 million in assistance to developing countries. We have invited IP head offices from developing countries and hosted empirical research for IP and economic development


Tanzania (Khamis Suedi, former employee of WIPO): We extend our congratulations and sympathies to the Ambassador of Paraguay for chairing the two meetings of the DA. It is becoming clear that during the two sessions there was no consensus possible. We have witnessed a plethora of individual proposals. Without doubt, development is critical to peoples. We cannot be questioned on our commitment to development, but we need to be realistic about what we want to pursue. The greatest success is the fact that there has been dialogue. We

The greatest success has been dialogue.

The mandate of the committee should be extended. All the proposals should be given consideration

I am from a developing country, an LDC, so no-one can question my credentials I would like to raise a word of caution. If I understood the Ambassador of the UK, UNCTAD is looking at its role with regard to development. Development is mandate of UNCTAD but when I see what is happening at UNCTAD, we must be careful in what we ask for.

We should all cry for development but we need to be guided by the historical realities of what we have entered. This organisation was involved in the revision of the Paris Convention but in the end it went elsewhere.

We should be careful of politicizing this issue.

Chair: There are now 12 countries on my list. I know it is an important item and everyone wants to speak. Please be concise in your statements. Unless you really have to, please take the floor.


Honduras:
1. Clear course of action.
2. Methodology must be agreed by the majority of members to preserve the inclusiveness of the proposals.

We should focus on how to proceed. We recognize as other MS have stated, that this could be a difficult exercise but we don't really have another option.

This is a huge task but nothing is compared if we want to put into practice inclusiveness and transparency.


Bolivia:

We need to recognize the efforts made by Amb. Gauto. We believe that development is *the* main challenge of this century in order to achieve the Millennium Development Goals. We are so pleased to see that WIPO has taken up this challenge.

All members are committed to directing the work of WIPO on a result oriented basis. As regards development, we need to give it pride of place in our work.

Development concerns can't be whittled down to a mere document. PCDA/2/2.
A true DA needs to target structural aspects.

We fully support the statement of the Republic of Argentina.


Morocco: I would like to endorse statement by African Group.
We have not yet managed to achieve anything on this issue. We have to face up to our collective responsibility.

We *need* flexibility.

I believe that those who participated in the trademark treaty negotiations will know that we were only successful because we were flexible. Let me congratulate Amb. Gafoor for his adept chairing and hosting the conference.

The negotiations that have gone on for two years have made certain things clear, that all delegations attach paramount importance to this topic.

We support renewing the mandate of the PCDA.

We must take a realistic inclusive approach.

Development is the touchstone of our Kingdom's polices.


Kenya:

We would like WIPO to integrate the Development Agenda. We do have LDCs, small island economies and more advanced developing countries. We identify with the statement of the African Group. We can make incremental and measurable progress. We must show results.


South Africa:

We align ourselves with Argentina, Nigeria and all the positions that MS have made to further the work of the development agenda.

SA would like to make clear that we want to see a balanced approach and we would like to extend the PCDA for 3-4 more sessions. TA is not the only thing related to the DA. Norm setting must be taken into account.


Iran:

I associate myself with the statement of Argentina. International cooperation for development has been recognized more than ever. It has had positive achievements in WIPO. We need a structured framework for continuation of the debate.

The extension oft he PCDA can provide a space for the discussion of substantive and procedural concerns.


Venezuala:

We support Argentina.

Simplification and streamlining should be handled for care.

Development is not just a need, it is a demand from the FOD countries.


Canada:

There have been many practical suggestions on this file. We should concentrate our efforts on the pragmatic areas where progress can be achieved.


Ukraine:


Russian Federation:

We are having an effective discussion here and taking a consensus approach.

References detailed statement of yesterday's statement on DA and offers support for the statement of Kyrgyzstan the leader of their regional group.


Uruguay:

We endorse what was said by Argentina. The mandate of the PCDA should be renewed.

Bearing in mind the MDGs, development issues must be incorporated into WIPO's program.


Chile:

We restate what was said yesterday. We need to renew the mandate of the PCDA to continue discussing the 111 proposals. We will closely scrutinise the K proposal.

We are also keen to hear the African Group.

Ethiopia:

We recognise that the PCDA process has been encouraging. It is a mistake if we contemplate on whether to continue the process or not. It would be a wrong signal if this house does not provide a forum to allow the process to work.

We therefore support in full the statement of Nigeria, which was put forward on behalf of the African group.

Dominican Republic:

We restate our commitment to these proposals. The documents submitted are very valuable as is the experience we have accumulated in this and previous forums (i.e. IIM). This is in following with the goal of main-streaming development issues when it comes to IP.

It is important that the GA can adopt recommendations on the scope of the DA. We support the renewal of the PCDA's mandate and the statement of Argentina this afternoon.

United States (Joyce Winchel NAMDE, State Department):

We, like many other delegations, are disappointed that MS have been unable to reach consensus on concrete results.

At the 2nd PCDA, all 111 proposals were discussed and remain on the table.

We welcomed doc PCD 2-3 as it offered a possible way forward and had gained substantial support.

The US remains committed to identifying proposals that will focus WIPO's work on IP and development We agree with Croatia that a forced agenda for WIPO will not work.

The proposal put forward by Kyrgystan may offer the most promising short-term path towards result. We believe an orderly procedure is required if we are to reach an outcome.

Those proposals that do not presently enjoy consensus may in time garner support. But we do not see the latter possibility as a reason not to achieve results in the short term.

We support Indonesia's suggestion to have an informal pre-PCDA meeting before each assembly in order to facilitate more progress.

Without agreement and simply extending the mandate of the PCDA may lead to the same result as the previous PCDAs.

Chair: Thanks everyone and says that 33 delegations took the floor, which shows the development agenda's importance.

It is quite clear that all delegations favour a continuation of the process. The only place where there were slight nuances were where to continue and in what form.

I am not in any position to come up with a concrete solution at this stage but there remain certain elements to be crafted with respect to the appropriate forum, the mandate, tangible results.

I am quite heartened by the fact that many of these items were touched upon by all delegations.

I propose suspending consideration in the plenary of this item.

At some time, perhaps as early as tomorrow, I'd like to have some open-ended, informal discussions to see if we can put some kind of agreed text forward. On that basis, let's see if we can come up with an agreed text to address this issue.

Written proposals are welcome. I will not say yet how we will conduct the informal meetings tomorrow. Some time tomorrow an announcement will be made about open ended informal consultations.


Mexico:

A point of clarification. Is the document submitted by Kyrgyzstan the basis for these open ended discussion?

Chair: I've been approached by other countries as well, so I'm not sure what the path for progress will be. If I get many proposals, I will perhaps combine some common elements and these may form the basis of discussions.

I now suspend consideration of this item in plenary.

I request Switzerland to report back on their consultations for the rewording of the decision of Agenda item 6.


Switzerland:

This can be seen in paragraph C

Note: reference revised text circulated for adoption.

Para b) "engage with Member States and the Audit Committee"...

Chair: I would like to put the revised text before the GA for adoption.

Indonesia:

We need further clarification with our group before proceeding further.

Chair: Of course, and I hope that you can report after that that you agree.

We will hold this text in abeyance.

Good news: We will have a night session at 7:45 PM.

Switzerland: Group B at 8.30

Nigeria: African Group at 9.00

Kyrgystan: group meeting at 9.30

Chair: meeting adjourned at 17.55

South African statement at WIPO General Assemblies

Highlights of the general statement by the Republic of South Africa at the WIPO General Assemblies

This statement was delivered by Glaudine Mtshali, Ambassador, Permanent Representative, Permanent Mission.

Geneva, 25 September to 3 October 2006

"This 42nd General Assemblies come at a time when Secretary-General Kofi Annan on 19 September 2006 said that "... the world is divided by an unjust economy, world disorder and widespread contempt for human rights and the rule of law...". The stalled Doha Development Round confirms Secretary-General [Annan's] observation as it bears witness to the pernicious hold that the powerful economies have on global trade and rules. It also reinforces the suspicion with which developing countries view global trade initiatives which do not benefit poor countries despite the politically correct titles attached thereto.

In the same vein, WIPO is challenged with the task of ensuring that the development agenda is taken seriously, is member-driven, and becomes deeply entrenched in all WIPO's rules, treaties, polices and programs...

It is our responsibility as Member States of WIPO to ensure that development is central to WIPO's activities, and that intellectual property rules and norms are supportive to the attainment of the Millennium Development Goals...

With regard to the Development Agenda proposal, South Africa calls for the continuation of the Development Agenda process in2007, with the view to agree on a set of recommendations, which would reflect both substantive and technical assistance issues. South Africa will not support recommendations that are not balanced. South Africa is firmly of the view that the development agenda is about more than just technical assistance. Norm-setting is at the core thereof.

South Africa reiterates that the Development Agenda must be incorporated in all areas of WIPO's activities, committees and structures. In this regard we reject a "one size fits all" approach and favour different standards of protection depending on the stage of development.

South Africa therefore welcomes and urges the General Assembly to extend and renew the mandate of the PCDA to continue its work on the development agenda...

The 15th Session of the Standing Committee on Copyrights and Related Rights agreed on a recommendation to convene a Diplomatic Conference on SCCR's Draft Basic Proposals. The exclusion of simulcasting and web casting from the draft basic proposal as was agreed in the 14th Session of the SCCR, should be maintained as a condition for proceeding to a Diplomatic Conference. We believe that the holding of a diplomatic conference in the absence of consensus on key substantive issues is clearly contentious and premature".

WIPO General Assembly-Impressions from Day One

FromGeneva
25 September 2006
Thiru Balasubramaniam

The WIPO General Assembly, the highest decision-making body of WIPO, runs from 25 September to 3 October 2006. Ambassador Enrique Manalo of the Philippines was elected chair of the General Assembly. The three agenda items expected to be of most substantial interest include: 1) the Development Agenda, 2) Protection of Broadcasting Organizations and 3) the Report on the Progress of the Standing Committee on the Law of Patents in Respect of the Draft Substantive Patent Law Treaty and Consideration of a New Work Plan for 2007.

The first day consisted of general statements from regional groups including the Asian Group, Group B (developed countries) and the African Group in addition to individual statements from Member States. From the onset, the Chair employed a strict but judicious time limit for oral interventions with 7 to 8 minutes given to regional coordinators and 5 minutes granted to individual Member States.

Switzerland, on behalf of Group B (developed countries) noted its disappointment that discussions that on the patent agenda and the development agenda were not resolved in their respective technical committees. With respect to the development agenda, Switzerland stressed its concern that the recommendations by the Chair of the PCDA (Ambassador Rigoberto Gauto Vielman of Paraguay) were supported by an overwhelming number of countries as a workable compromise and a way forward for discussion.

What the Swiss delegate did not mention however, was that the PCDA's recommendations were summarily rejected by the Friends of Development and did not have the status of "Chair's recommendations" but instead miraculously appeared as the proposal from the Kyrgyz Republic.

Nigeria, on behalf of the African Group, called upon the General Assembly to "renew the mandate" of the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA) "in order to continue with its work soon after the Assemblies". The African Group called for the PCDA to hold three 5 day sessions in 2007 "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".

With respect to the "protection of signals for broadcasting organizations", the African Group stressed that "web casting and simulcasting should not feature" in the proposed treaty. The African Group noted that the treaty "should adequately protect the public interest by the inclusion of safeguards and exceptions and limitations".

Singapore, on behalf of the ASEAN group, stated that intellectual property was not an end in itself, but rather a means of promoting economic, social and cultural development.

Finland, on behalf of the European Communities and its Member States, expressed its support for a decision calling for the convening of a Diplomatic Conference for a treaty on the protection of broadcasting organizations.

Minister Gilberto Gil (Ministry of Culture, Brazil) stated the following

We are living a historical moment when, more than ever, intellectual property deserves to be the object of a debate that corresponds to the breadth and complexity that this subject has acquired. We have seen that a number of sectors of the international community has become increasingly aware of the importance of discussing intellectual property in all its aspects, particularly its effects on social and economic development, as illustrated by the Doha Declaration on TRIPS and Public Health.

It is clear to us that development will only be ensured if there is a balance between intellectual property rights and obligations and the public interest, as had been highlighted by the Ambassador of Argentina, on behalf of the Group of Friends of Development. If such balance is lost we will violate the nature of knowledge itself: we should never forget Thomas Jefferson's words, according to which there would not be any one thing less susceptible than all others of exclusive property than ideas, whose sharing does not necessarily harm anyone....

The Brazilian Government is concerned with the fact that the Basic Proposal for a Treaty on the Protection of Broadcasting Organizations, approved by the Standing Committee on Copyright and Related Rights, remains the object of disagreements and had not been able to please the majority of Members, both developed and developing.

Should this Assembly confirm the convening of a Diplomatic Conference with a view to finalizing the Treaty, we must be aware that many questions remain to be solved after several years of hard work on the subject, shedding doubt on the very opportunity of such a negotiating exercise.

The Brazilian Government calls for the Assembly to hold reasonable and comprehensive discussions on this subject. If the Diplomatic Conference is ultimately confirmed by this Assembly, notwithstanding many pending issues, we will be consciously assuming the risk of another failure at WIPO, repeating the outcome of the Diplomatic of the year 2000, meant to approve a new audiovisual treaty.

At the international level, many different organizations are already engaged in assessing the impacts of intellectual property. The UN, UNESCO, WTO, WHO, CBD, UNCTAD and many others have been contributing to the debate on intellectual property and development.

Argentina, on behalf of the Group of Friends of Development, expressed its support for a General Assembly resolution on the development agenda that covered the following topics:

• norm setting
• impact assessments
• technology transfer
• instutional matters and mandate

Argentina called for a renewal fo the PCDA mandate for two years till 2008. With respect to the broadcasting treaty, Argentina noted that the draft basic proposal (DBP) contained articles on limitations and exceptions and defense of competition which were important to the Friends of Development. Argentina that the exclusion of simulcasting and webcasting from the DBP was a sine qua non condition for proceding with a Diplomatic Conference.

With respect to the WIPO Standing Committee on Copyright and Related Rights' (SCCR) work on limitations and exceptions, Chile noted that "hicimos una propuesta destinada a discutir y consensuar excepciones y limitaciones minimas, especificamente para personas discapacitadas, para bibliotecas y archivos, y con fines educacionales".

On the question of the proposed broadcasting treaty, the delegation of Chile stated "apopyamos su desarollo y consolidacion, sin embargo coincidimos con aquellos que piensan que el actual estado de la discussion no tiene madurez y claridad suficiente como para intentar su conclusion en el futuro cercano" while stressing that "[n]uestra preferencia es que sigamos trabajando este ano y el 2007 y que sea la Asamblea General del proximo ano la que tome la decision sobre el llamado a una posible conferencia diplomatica en la materia".

Notes from conclusion of WIPO SCCR

Here below is an unofficial account (joint notes of EFF/CPTech) of the afternoon session of day 3 of the 15th SCCR where Chairman Jukka Liedes ran roughshod over the concerns of many Member States including the India, Iran, the United States of America, Bolivia, and Brazil by formulating the condition for approval of his recommendations through the strange procedure of "silent approval". The SCCR recommended convening a Diplomatic Conference from 11 July to 1 August 2007 with a "special meeting" slated for January 2007 intended to engender consensus on substantive issues. These recommendations are subject to approval by the WIPO General Assembly, the highest decision making body of WIPO.

Thiru Balasubramaniam

--------------------

Blogging WIPO: Standing Committee on Copyright and Related Rights, Session 15 on proposed Broadcasting Treaty

Day 3

13 September 2006

Afternoon Session

---
Notes taken by:

Gwen Hinze, gwen at eff dot org, Electronic Frontier Foundation [GH]

Thiru Balasubramaniam, thiru at cptech dot org, Consumer Project on Technology [TB]

[NOTE: This is not an official transcript. It's our best effort at providing a faithful set of notes of the proceedings. Any errors and omissions are unintentional and regretted.]

-=-=-=-=-
Copyright-Only Dedication (based on United States law)

Except where indicated in relation to specific text in the following material, the person or persons who have associated their work with this document (the "Dedicator") hereby dedicate the entire copyright in the work of authorship identified below (the "Work") to the public domain.

Dedicator makes this dedication for the benefit of the public at large and to the detriment of Dedicator's heirs and successors. Dedicator intends this dedication to be an overt act of relinquishment in perpetuity of all present and future rights under copyright law, whether
vested or contingent, in the Work. Dedicator understands that such relinquishment of all rights includes the relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in the Work.

Dedicator recognizes that, once placed in the public domain, the Work may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or non-commercial, and in any way, including by methods that have not yet been invented or conceived.

-------------------

3:30 pm

Chair: It seems that the consultations over the last few days have led to agreement amongst many delegations that they would be prepared to accept recommending to the General Assembly to convene a Diplomatic Conference. We have also heard that many delegations could accept the current draft on table as the basic proposal.

Then there is the question about whether we can agree drafting instructions precise enough that would allow us to move forward and take the next step.

It sounds like many delegations would consider that these items are inter-linked. That advice has now repeatedly received. It is not useful to have point by point discussion. It is very difficult to explain all links as there are too many such things.

I suggest we continue the series of interventions that started this morning.

Is inclusiveness the prevailing principle or should we have further drafting and under what sort of conditions. Now as you take the floor and make intervention, bear in mind the outstanding matters.

Uruguay:

We would like to make a general comment. We want the Committee to think about the end user of the broadcast and human rights.

We've already made a general statement on this. We would like the minutes to reflect the connection between human rights and IP. and ensure that treaty not violates human rights including the rights of the child and the rights of women.

The over-riding principle is the right of the child and this includes access to education and information

Pakistan:


We need to remove all references to webcsting and internet retransmission issues as they are contentious. Would the preparatory committee that is described in your draft document be used to consider discussions on this?

Chair:

This may be best answered by the experts of the institution. But the committee may be used for specific technical matters, but as delegates come to that meeting, they could attend another meeting on substance at same time.

Pakistan:

Then you should include a sentence that the discussions on the text will take place in these ensuing meetings.

Chair: Thank you for suggesting that when delegations come to Geneva they could continue informal discussions on substance.


Norway:

As stated before, Norway is in favor of moving towards holding a Diplomatic Conference in 2007 and to moving to update broadcast rights in line with other related rights. We have been have in negotiations for 8 years. We believe that current draft SCCR 15/2 can form the basis of discussions for a Diplomatic Conference.

Russian Federation:

I wanted to reiterate opinion of our delegation, endorsed by many colleagues this morning. Document 15/2 is excellent basis for holding a Diplomatic Conference. Of course there are some problems but they can be worked by experts, real experts, who will be there at the Diplomatic Conference. In accordance with instructions we have received, we want to state that this draft is consistent with us moving towards a Diplomatic Conference.

South Africa:

We would like to see a non-exhaustive list of limitations and exceptions On TPMS would like to make clear that this protection should be limited to signal protection.


Mexico:

I wish to express support for the draft you have given us. Certain favorable factors for moving forward with one caveat, that there remain certain issues that are outstanding.


Chair: In addition to previous speakers, there are a number of delegations who have indicated that discussions could proceed on the basis of current draft.

Egypt:

We see a term of protection for 20 years in the current draft The African Group came up with the proposal for a "minimum term of protection" for 20 years.

We feel that the term of protection should not go below 20 years.

Chair: I could add that to my draft here. The English version says "at least" 20 years, but could be stressed further.

India:

On specific question, whether we should proceed on 15/2 or document that you distributed this morning, if the suggestion is that we do not take the time to give specific instructions on drafting and proceed with current text, we want to reiterate our position that the current text is riddled with inherent contradictions and inconsistencies. We do not accept that current document could form the basis of discussions for a decision to convene a Diplomatic Conference.


Iran:

We need some clarification regarding the basic proposal.

At our last meeting, it was agreed that document referred to (SCCR 12) would be excluded from consideration. Also the title is unclear. There was clear consensus to exclude SCCR12/5.

Chair: Thank you, you made some good points. We will complement the list by getting instructions but have received clear instructions that don't go that way because would be like doing DC itself, many linkages.

[TB: What does this mean exactly?]

On second point, we have only one draft document SCCR/15/2.

I did not take notes, what were you other technical question please?

Iran: I do not know what you mean.

Chair: I think you had 4 points, but I think I responded to your two most pertinent points.

Switzerland:

We support Norway's statements. The time is ripe for a Diplomatic Conference, we should not let it become rotten.

We have a concern that the document too broad, but we would support your suggestion to remove "revised draft" and change date.

Benin:

Thank you for all your work, and doing best to reaching consensus on holding a Diplomatic Conference in 2007. As for the draft conclusions, looking at the provisions on limitations and exceptions, we see a reference to the list approach. This is an approach we could support but on the understanding that it is a non-exhaustive list.

Is it possible to resolve all the outstanding issues before embarking on a Diplomatic Conference.

Chair: There are items to add to the understanding.

Turkey:

We support convening of DC. Do instructions mean that delegations are not free to raise other questions not listed here? Would the Prep Conf. be taking up with procedure logistics, what questions go first?


Chair:

Prep con is very specific meeting with very specific tasks, such as procedural rules for the Diplomatic Conference and drawing up list of governments and NGOs, it does not usually deal with matters of substance, which are usually left up to member states, to organize their own proceedings.

On your first question, we are totally in free space, either now or in Diplomatic Conference, any Member State can raise any issue, even with draft basic text in front of you.


Brazil:

We have a lot of flexibility in this meeting.

In sense that 15/2 has lot of alternatives that were supported by many delegations in this room and to the extent that made clear that webcasting and simultacting as such were taken out of this document, and noting Indian's comments about inconsistencies within the document, we could agree that this document could be basis of convening a Diplomatic Conference.

If we depart from this approach such as what you proposed last night (guidelines) we could eventually consider this as well, in this case we would have a procedural difficulty as we could not take a decision till we can consider in a formal session of the SCCR the basic text.

Chair: If we should use that document, we should complete the guidelines text but we rejected that because you yourself mentioned that you were not opposed to Member States giving feedback and further instruction. That procedure would undermine the objective we are trying to work toward here.

Morocco:

We consider the convening of a Diplomatic Conference in 2007 of the highest importance. It is becoming apparent that there a deep differences between us. I believe that many delegations need to review those concerns within a new basic proposal in order that they can feel they can support the convening of a Diplomatic Conference.

I wonder if we could recommend to the General Assembly the convening of a Diplomatic Conference on the condition that consensus be reached on a new basic proposal in an SCCR that could meet perhaps in January 2007. I believe we could achieve consensus in January 2007.

Chair:

Now we have revived this two step process for your consideration and to look at ways to make it better. We have these two ways and no way is easy.


European Communities and its Member States plus Bulgaria and Romania:

We have been involved in deliberations to determine the likely contours of an agreement.

The elements of a basic proposal are contained in document 15/2 and the guidelines you have circulated. All of these are elements in a wider puzzle that we should reconfigure in a careful manner to reach an agreement.

We believe that the basic text (doc 15/2) contains all the elements we have necessary for a Diplomatic Conference. We are open to clarify if necessary on how to configure Draft Basic Proposal into a basic text.

Our main message is that we see the contours of how these elements can be reconfigured to reach an agreement. It requires a lot of expertise and goodwill.


Pakistan:

We support holding the of a Diplomatic Conference, but I cannot find a deadline for holding a Diplomatic Conference in 2007. Is there a deadline for holding a Diplomatic Conference in 2007?

Chair: May, June, or July? July would allow prep com to be held in May. A May date would allow for a December prep con.


Agreement not on substance, but on procedure.

[TB: Chair is NOT answering the question "Is there a deadline holding a Dip Con in 2007."]

United States of America:

We have not intervened except on one occasion.

Much like the EC we have engaged in listening and discussing with other delegations to test the consensus and agreement about the current status of draft basic proposal SCCR15/2. One of the main reasons we reluctantly agreed at last meetings, somewhat contrary to principles of inclusiveness, exclusion of our webcasting protection, was to see what type of consensus
we had with respect to broadcasting and cablecasting protection.

In our assessment, by itself, the Draft Basic Proposal not a sufficient basis to proceed to a Diplomatic Conference, we require more certainly. We presume this is the same for other delegations. The principle of inclusiveness has benefits and costs, and for the US the document has these. Principle among these are the provisions contained in articles 2,3 and 4 which reach beyond the protection of broadcasting, causing us much uncertainty going forward. Similarly we have concerns about the provision on TPMs. As we noted earlier this week, there is no equivalent provision to the WPPT language in the draft text, and this increases uncertainty and risk from our point of view. We note that our proposal not included in drafting instructions.

We remain open to alleviate the uncertainty caused.

We do think that more work needs to be done on SCCR 15/2 and we remain open to ideas on how to proceed forward in a timely manner.

Australia:

Our inclination is to join with sentiments expressed by Norway and Switzerland, insofar as they suggested that SCCR15/2 could be basis for going forward with a Diplomatic Conference. This is not to be taken as acceptance of everything in that document, and not implying that those delegations implied that. One previous delegation implied that the text contained a number of inconsistencies. That is inevitable. We some have trouble accepting some of alternatives in provision that previous delegation has just mentioned. We think we could go forward nevertheless because you can only allow fruit to ripen so far before it goes rotten. We are not opposed to a two track process.

[TB: Indonesian Ambassador and Romanian Ambassador are present in the room]


Chair:

I will say something after Bolivia, I will offer my thoughts.

Bolivia:

During the meetings, my delegation has noted that while 15/2 is a good and inclusive documents it contains a number of divergent views and thus it would be premature to convene a Diplomatic Conference. More particularly in my country's view, we are concerned about the lack of safeguards covering the public interest, a priority for my country, as expressed earlier by Uruguay. We believe these safeguard should considered in the body of treaty not in the preamble.

For this reasons, we consider it premature to convene a Diplomatic Conference. We should continue our work in future SCCR's to bring diverging views together and in following year perhaps able to hold Diplomatic Conference.

Chair:

We have been working on this for 8 years. High level of feeling that we should not conclude the project, make it a success, not a failure. There is flexibility. Of course there is convergence. Politically and technically would be simplest to just say that draft text on table be converted and become the Basic Proposal. There are concerns and opinion that something should be done. How? We have tried the instruction method. It is clear that instructions method works against itself, because in time available, we cannot reflect willingness and flexibility and connections between items. This has added to concerns of some.

There is a reference to have another meeting to revisit substantive but of course under the provision that we already make a recommendation to convene a Diplomatic Conference.

One possibility would be that after this meeting on the basis of all that we know and all that has been recorded and said, revision would be made in the document and this would be presented in the Prep Conf.

Or we have possibility that we go forward on what we have. We would convert the Draft Basic Proposal to the Basic Proposal and agree that would meet before the Prep Con to try to further agreement. To this we could add the condition that this would not be taken to be the Basic Proposal without trying to do something to it.

Now i would say convert to the document to a Basic Proposal and hold another meeting and from that meeting one or more element could emerge - that would form basis for Working Paper. At least two possibilities, make it de facto by creating a working paper that we know very well or develop alternative proposals. I see the former as the only way forward.


I will not be able to produce this in writing as we do not have enough time available.

We cannot open a substantive debate on this. We will break for 5 minutes to consult with the Secretariat.

---5:08


Chair:


I would like to propose the following:

1. A diplomatic conference on the protection of broadcasting organizations be convened from July 11 - August 1, 2007 in Geneva. The objective of this diplomatic conference is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations. The scope of the treaty will be confined on the protection of broadcasting and cablecasting organizations in the traditional sense
2. The draft basic proposal SCCR15/2 will be the Basic Proposal and form the basis of the discussions with the understanding that all delegations can submit proposals at the Diplomatic Conference.
3. The meeting of a preparatory committee will be convened for January 2007 to prepare the necessary modalities of the diplomatic conference. The preparatory committee considers the draft rules of procedure to be presented for adoption to the diplomatic conference, the lists of states, as well as intergovernmental and non-governmental organizations to be invited to participate in the conference, as well as other necessary organizational matters.
4. A special meeting of two days to clarify outstanding matters will be convened in conjunction with the preparatory committee aided by a non-paper to be prepared by December 15, 2006 prepared by CHAIR.
   

I submit for approval.

India:

We want to know status of "non-paper", basis of preparation of paper and in the two days, . In the last meeting we had discussed consideration of draft article by article. This meeting proceeded differently than what we had expected. Once I have clarification on this point, and how consideration of paper will be done, we would be provide comments to Secretariat.

Chair: The meeting is called a special meeting which would look at substantive issues and have objective to forge common grounds that consensus or near consensus positions could emerge, This would allow new proposals to emerge if sponsored or agreed by several delegation. This would de facto lead to solutions that would be a basis for solutions for the Diplomatic Conference. It would what we have omitted from this meeting - article by Article consideration. The character of the non-paper would be nothing before the delegates consider it, or that a proposal emerging from it could be put to delegations

India:

I have some more supplementaries. You have used the term "substantive issues" when referring to "non-paper".

All the issues in your drafting paper are substantive issues. How are we to separate and identify what are the substantive papers on which a non paper is to be prepared. We would strongly request that they be identified now. If not, it would just be yet another paper that is likely to lead to confusion. If we have an agreement on substantive non-paper issues and Chair kindly agrees to draft we could have way to move forward. Otherwise, it could just be another draft, two documents, and this would not move things forward.

Chair: Thank you. I have another suggestion. What if list of headings could be the same as the draft list in italics. That would make it possible to identify articles relevant and the fact that you could find in the reports of meetings the expression of different views.

We could not expect that the meeting would be more than a prelude to a Diplomatic Conference, a midway.

India:

My humble submission is that it covers the whole treaty, not specific substantive issues. Therefore I would reiterate our delegation's position, that we either disregard 15/2 and prepare a new paper that removes inconsistencies and they have that paper considered by new meeting. If you have been saying that 15/2 is Draft Basic Proposal then preparing of a new set of substantive issue in a non-paper will further complicated this process. We reiterate our delegation's proposal that we have a Draft Basic Proposal first. If majority of delegations here have said that this is the case, then we don't see need for further papers to iron out substantive issues. As you have said, we can work these issues out at Dip con. superimposing a new doc would undermine the value of a Draft Basic Proposal.

Chair:

If you would allow non-paper to prevail then there would always be a prevailing document, the Draft Basic Proposal for DC. To try to do something with elements here better to do it in non-paper so can discard it if nothing useful emerges, but if something useful emerges, then very useful b/c based on discussions with delegations for DC.

The non-paper would disappear and the basic proposal would stand if its elements would not be eliminated.

India:

Will not clarify b/c may be perceived to be monopolizing floor but reserve right to speak to later.

Brazil:

I had no problem with monopolizing time as some of the discussions were interesting. Your last two suggestions were confusing to our delegation.

Non-papers may be produced but they will have no formal relevance in the process and I will tell my authorities that 15/2 will be the basic proposal. I cannot tell my authorities in my Capital that the basis for the Dip Con will be a non-paper that we really know nothing about.

As you know this is a very legalistic organization. Superimposing an additional paper provides us with less certainty.

If your drafting document reflect your views as to what a non-paper may be acceptable then I have to register my concerns.

Scope: It is still not clear that the protection for signals is about protection about signal theft rather than conferring exclusive rights.

Then there is the whole issue of grouping of rights in an operative provision not a preambular provision. I find 15/2 positive because it includes our proposal but your drafting instructions knock them off the table and are not acceptable to our delegation. We did not submit a proposal for preambular purpose but to be included in the operative text.

With reference to the EC statement about linkages - we need to understand how this will fit with rest of the document.

There is no definition of beneficiaries.

Right and protection - The scope of protection should clearly exclude webcasting and simulcasting rights and coverage of non-copyrighted and public domain works.

Post-fixation rights-there has been a lot of agreement that these provisions should be dropped in our bilaterals discussions here.

TPMs are critical for our delegation - not including is the issue. not needed for for protecting signals. It is necessary to protect content, but copyright is already protected under national law.

National treatment - we do not accept reciprocity as basis, only national treatment.

Eligibility - not accurate descriptions. Would like my comments to be reflected in minutes for your consideration and inclusion in a non paper that you may want to prepare for consideration outside our formal negotiation activities.

Chair:

As you said, there is no need to prepare non-paper if decide on 15/2 as Draft Basic Proposal. And no consensus on need for special meeting, so should delete rest of sentence there.

Iran:

This way of proceeding is confusing and questionable for us. In the 14th session we agreed that the Draft Basic Proposal would be the subject of discussion at this session.

This way of proceeding is confusing for us. At end of SCCR 14 we would use 15/2 as basis for future discussion. You indicated that there would be discussion on whether to hold a Diplomatic Conference this has been rejected by a number of delegations and now you have suggested a non-paper.

Chair: [Interrupting]

The idea of a non-paper has been dropped, because it is not acceptable to one delegation. At least one delegation has said that this document could not become a basis for Diplomatic Conference. Are there any other delegations in this position?

El Salvador:

The technical issues could be resolved at the Diplomatic Conference but we have doubts as to your proposal that we should hold a two day meeting. My authorities have asked me to request a clarification because we would then like to know under what authority would a Diplomatic Conference be convened? Would it be convened at the two day meeting or at some future meeting?

These clarifications were requested by my capital.

Chair:

Point two reads: The Revised Draft Basic Proposal shall constitute the working basis "with the understanding that all delegations may make proposals at the Diplomatic Conference"

India: Thank you. Want to draw your attention to para 4 on page 1.

Chair: That para is gone. I read only 4 paras - all is else is gone.

India: notes in 4th para that there was "broad consensus ". The SCCR stated that there was sufficient common ground on substantive questions etc. The fact that we are planning to meet for two days to resolve substantive issues indicates that there was no substantive agreement on these points so any language that does later get adopted should reflect that.

Chair:

Agreed. We would not include this and we would have this recording. I have asked you not to insist on taking the floor, so that we can proceed to finalize and agree that we will have only those 4 papers. That meeting will agree how to finalize their work and whether that is by non-papers or something else. I know that two delegation s are asking for the floor, but is it a point of order?

Argentina:

We are seeking to work in as flexible way as possible, but would urge you, that in same way that you did in the previous paper, we would urge to have draft decision in front of us. This is important. The language and how we are fulfilling them, are we really fulfilling the mandate of the General Assembly. We were not been asked to fix a date for the Diplomatic Conference, you will recollect it was a negotiated outcome and a careful prepared resolution, We would not want our conclusion to conflict with anything agreed by the General Assembly. We request that you distribute this to us in writing, in order to make a n informed decisions.

Chair: For technical reasons it is not possible to provide you this. Please indicate your support through "silent approval".

India: Please clarify for us what you mean by "silent approval".

[TB: Chair smiles and wags his head in a goofy manner]

Chair: The recommendations have been so decided.