Thursday, September 28, 2006

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.]

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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):
B?? Bhutan?? [RB: two countries to Brazil's right]:

* 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.