FromGeneva

Pre-Development Agenda Meeting In Singapore

2007-04-16T12:06:00.000+02:00

FromGeneva
Thiru Balasubramaniam
16 April 2007

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

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

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

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

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

Colombia, the Public Domain and the Development Agenda

2007-02-22T18:09:00.000+01:00

FromGeneva
February 22, 2007
Thiru Balasubramaniam

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

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

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

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

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

2007-02-21T14:05:00.000+01:00

FromGeneva
February 21, 2007
Thiru Balasubramaniam

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

No Conflict of Creeds: WIPO Delegates discuss the public domain

2007-02-20T23:49:00.001+01:00

FromGeneva
February 20, 2007
Thiru Balasubramaniam

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

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

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

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

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

The Chilean representative stressed that the

public domain is important for access to knowledge. An accessible public domain benefits inventors, universities and research centres. It is not incommensurate with protecting intellectual property as was suggested today.

[My understanding is that Chile was referring to Tom Giovanetti’s intervention.]

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

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

In contrast, Uruguay stated that,

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

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

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

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

created by the upward harmonization of patent, trademark, copyright and related rights.

Switzerland and Italy expressed their reservation on proposal 17 (Cluster B) which called for the “protection of the public domain within WIPO’s normative processes.” Italy in particular asserted that

The public domain cannot, by definition, be protected. Therefore we need to be clear about what can and cannot be protected because it has already fallen into the public domain.

The delegate from Chile responded saying,

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

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

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

New Chair of WIPO Committee dealing with Development Agenda

2007-02-19T12:03:00.000+01:00

FromGeneva
February 19, 2007
Thiru Balasubramaniam

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

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

Ambassador Clarke set out a congenial start to the meeting with charming candor noting that

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

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

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

Icy winds and open standards tempest descend upon Ivy League haven

2007-02-06T16:41:00.000+01:00

FromGeneva
Thiru Balasubramaniam
February 6, 2007

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

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

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

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

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

"What role can international organizations like WTO play? When China tabled view on IPRs and standardization, there was divided opinion of this in the WTO. There needs to be more discussion of standards at the WTO".
"How developing countries can play a role in the development of open standards? How can countries improve their effectiveness in developing standards? So far, developing countries have played a limited role. Developing countries need to do their homework. The current TBT Agreement poses limitations on these discussions".
"How China has contributed to standards development, from a personal perspective. In ancient times. Chinese shared inventions such as paper and gunpowder. Our ancestors embraced the idea of sharing knowledge. Consider how different things would be if our ancesters guarded the secret to making paper and gunpowder".

During the intitial set of Q&A in the politics panel, your blogger asked Mr. Huang, "Do you see other fora as appropriate venues for discussion of open standards outside of the WTO TBT committee? How do you see its future within the TBT"? This question was grounded in KEI's previous calls for WIPO to

[a]ddress the problems faced by standards organizations, and in particular, those that involve essential interfaces for knowledge goods, such as software or Internet standards.

Mr. Huang Rengang responded by saying that when China submitted its standards papers to the WTO, questions were raised about its motivations including the "wanting to pay less royalties." Other Members decried that standards and IPR issues were not appropriate for agenda of the Triennial Review as it would imply that IPRs are barriers to trade and call for a revision of the TBT. Mr. Huang concluded by stating that the discussion of "open standards is unstoppable".

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

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

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

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

2007-01-26T14:36:00.000+01:00

FromGeneva
Thiru Balasubramaniam
January 26, 2007

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

From our perspective, it remains incumbent upon the IGWG Bureau in collaboration with the WHO Member States and the WHO Secretariat to address the central question posed by WHA 59.24, namely,

securing an enhanced and sustainable basis for needs-driven, essential health research and diseases that disproportionately affect developing countries, proposing clear objectives and priorities for research and development, and estimating funding needs in this area;

(eg "Who pays for what and how").

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

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

11:30 AM

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

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

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

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

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

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

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

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

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

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

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

Thailand takes note of progress of early implementation.

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

We would like to propose a DECISION for consideration.

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

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

With respect to the WHO progress report,

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

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

We fully agree that we need a strong preparatory process.

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

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

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

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

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

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

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

Chair: NGOs cannot speak at this time.

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

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

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

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

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

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

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

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

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

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

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

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

Impasse at WIPO broadcasting negotiations: Our ship is sinking

2007-01-19T11:59:00.000+01:00

FromGeneva
January 19, 2007
Thiru Balasubramaniam

The image of a tanker slowly turning its course in a new direction has been used to describe how the special sessions (which convene in January 2007 and June 2007) of the WIPO Standing Committee on Copyright and Related Rights (SCCR) will implement the 33rd General Assembly's instructions to the SCCR to

agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal referred to in Paragraph 2. The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2.

However, with Mr. Jukka Liedes, the Finnish chair, steering the helm, it seems that our tanker will soon hit an iceberg, with devastating consequences to follow. Informal afternoon and night sessions on the second day interspersed with pizza, beer, and wine provided gratis by the Secretariat excluded NGOs from the deliberations. During the informals on the second day, parties close to the negotiations informed your blogger that many hours were spent discussing what the "objectives" of a treaty for the protection of broadcasting organizations are. After 9 years of deliberations starting in 1998 in the Philippines, it is heartening to know that this Committee is finally considering the "objectives" of a broadcast treaty. Rather than a negotiation between WIPO Member States, the tenor of the special session thus far can be characterized by pedantic, monotone lectures by Chair Liedes boring the Committee into submission. As Brazil and India have noted, the non-papers circulated in a haphazard manner have no legal status and cannot be considered as a basis for negotiations.

As my colleague Manon Ress pointed out, the Chair circulated draft conclusions this morning on the final day of the first special session. Judging be the lack of a rapturous welcome that these conclusions received by such States as Brazil and India, it seems our captain is intent on scuttling his ship before he would truly guide this Committee to genuinely comport with the instructions of the General Assembly to adopted a signal-based approach.

Statement by the United States @ WIPO SCCR (Day 1)

2007-01-18T15:03:00.000+01:00

January 17, 2007

The United States Government would like to congratulate the Chair and his Vice-Chairs on their election and also welcome and congratulate the new Deputy Director General of WIPO. Mr. Chairman, the United States supports the statement of Italy on behalf of Group B. We are in an important phase of the Standing Committee on Copyright and Related Rights as we start this Special Session and your leadership, and well-known diplomatic skills, will be pivotal to advance and conclude a new treaty on the protection of the rights of broadcasting organizations. We support the method of work you have outlined this morning, and will offer comments on your papers at the appropriate time.

The United States was pleased with the decision of the 33rd Session of the General Assemblies to hold 2 special sessions of the Standing Committee on Copyright and Related Rights to clarify the outstanding issues. That decision states that “the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal of SCCR 15/2. The Diplomatic Conference will be convened if such agreement is achieved.”

The United States continues to believe in, and will be guided in this meeting and the June meeting by, the critical question of what do broadcasters need at a minimum to protect against the unauthorized interception and transmission of their signals, and by the consideration that any protection should be based on answering that important question.

The expectation of the United States is that the decision of the General Assemblies, focusing on a more limited and narrow signal-based approach to this treaty, will be respected. To that end, all of us have an important opportunity and responsibility to revise the current basic proposal, 15/2. As we stated at the September 2006 SCCR and repeated at the General Assemblies, proceeding to a Diplomatic Conference using a 108 page document with few agreed provisions does not make for a text stable enough to be considered a Basic Proposal.

15/2, in our view, must be substantially narrowed to meet the criteria set forth in the decision of the General Assemblies. At a minimum, we believe this means agreement on the scope of protection providing broadcasters with what they need to protect against signal piracy while not undermining the rights of the underlying content holders or the public interest. As we have noted before, certain provisions in the current draft would undermine any protection provided under the treaty. The United States believes that resolution of those issues is integral to resolving the scope and object of protection. Furthermore, we must be sure to avoid any unintended consequences with regard to current and future technological advances. Protection for technological protection measures and exceptions and limitations consistent with international treaties remain critical components for any convention.

Throughout this process, the United States Government has sought to achieve a treaty that is reasonably up-to-date given the state of technology now and in the reasonably foreseeable future. Fundamental to this is a treaty including, at a minimum, protection for its beneficiaries against the unauthorized simultaneous retransmission of broadcast signals over the Internet. We consider the major threat to broadcasters today to be that which arises when someone places their signal on the Internet without permission.

Since the beginning of our discussions at WIPO on this issue of protection for broadcasters, the United States has scaled back its ambition for the treaty as reflected by the withdrawal of its own proposal which proposed, on a technologically neutral basis, protection for netcasting organizations. The United States believes that flexibility in this process is required of all member states in order to achieve an agreement that will enjoy consensus. However, an agreement without identifiable benefits for broadcasting and cablecasting organizations will be a pointless exercise, particularly if it derogates from existing protections and sets negative precedents.

We hope all member states will demonstrate the necessary flexibility so that we can achieve a positive outcome. We remain committed to the successful conclusion of a treaty that responds to the needs of all stakeholders. We are confident that you will ably guide our discussions going forward and we stand ready to assist you.

Canada, United States, South Africa and Kenya raise issue of fast-tracking NGO accreditation

2006-12-08T11:46:00.000+01:00

FromGeneva
8 December 2006
Thiru Balasubramaniam

On the final day of the first WHO Intergovernmental Working Group on Public Health, Innovation, and Intellectual Property (IGWG/PHI), Canada, United States and Kenya made helpful interventions on the fast-tracking of NGOs to the WHO IGWG process (on an ad hoc basis). Specifically, the United States delegate referred to the fast-track accreditation process undertaken at the Framework Convention on Tobacco Control. The WHO Legal Counsel noted that the WHO Executive Board (January 2007) would be the competent authority to make this decision. Kenya asked the WHO Secretariat on how to facilitate the quicket accreditation of civil society to the IGWG process. The Secretariat noted that a WHO Member State would need to raise NGO accreditation at the Executive Board in January 2007 but further clarified that this topic would be on the report of this meeting. The United States then queried whether NGO accreditation would be automatically included on the Executive Board and the WHO Secretariat confirmed this point.

10 Asian countries support global treaty on R&D

2006-12-05T16:40:00.000+01:00

5 December 2006
FromGeneva
Thiru Balasubramaniam

On day 2 of the WHO Intergovernmental Working Group on Public Health, Innovation and Intellectual Property, the delegate from Thailand, on behalf of the WHO South East Asian Region (Bangladesh, Bhutan, DPR Korea, India, Indonesia, Maldives, Myanmar, Nepal, Sri Lanka, Timor-Leste) indicated the SEARO region's support for a global treaty on R&D. He noted that the global health community needed a sustainable funding mechanism for upstream research. The delegate from Thailand made reference to paragraph 18 of A/PHI/IGWG/1/2 (Review of recommendations of the Commission on Intellectual Property Rights, Innovation and Public Health) which states

Recognizing the need for an international mechanism to increase global coordination and funding of medical research and development, the sponsors of the treaty proposal on medical research and development should undertake further work to develop these ideas so that government and policy-makers may make an informed decision.

Discussion on WHO experts at meeting on R&D

2006-12-04T10:13:00.000+01:00

4 December 2006
FromGeneva
Thiru Balasubramaniam

Today is the first day of the inaugural meeting of World Health Organization (WHO) Intergovernmental Working Group on Public Health, Innovation and Intellectual Property mandated by the World Health Assembly Resolution (WHA) 59.24 to establish an intergovernmental working group

open to all interested Member States to draw up a global strategy and plan of action in order to provide a medium-term framework based on the recommendations of the Commission. Such a strategy and plan of action aims at, inter alia, securing an enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportinately affect developing countries, proposing clear objectives and priorities for research and development, and estimating funding needs in in this area.

Currently a chair has not been elected. Mr. Denis Aitken (Assistant Director-General- Advisor to the Director-General) is presiding over the meeting till the IGWG has elected a chair. It has been suggested that a bureau be set up with a Chair and 5 Vice Chairs representing all 6 WHO regions, and that the vice chairs meet over lunch today to nominate a chair and rapporteur.

There has been discussion over the role of experts invited in accordance with WHA 59.24 (Paragraph 4(3)) which requests the Director-General

to invite experts and a limited number of concerned public and private entities to attend the sessions of the intergovernmental working group and to provide advice and expertise, as necessary, upon request of the Chair, taking into account the need to avoid conflicts of interest

The experts invited the the first meeting of the WHO IGWG include Dr. Pecoul and Mrs. Dentico from the Drugs for Neglected Diseases Intiative (DNDi), Dr. von Schoen Angerer and Ms. 't Hoen from Medicins sans Frontieres, Ms. Feisee from the Biotechnology Industry Organization, Mrs Callan and Ms. Sampogna from the Organisation for Economic Cooperation and Development (OECD), Mr. Iverson from the Bill & Melinda Gates Foundation, Mr. Wilder from Sidley Austin LLP, in addition to experts from the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO) and the Global Forum for Health Research.

South Africa, on behalf of the African Group, asked clarification from the WHO Legal Counsel on how the experts were chosen since a Chair has not been elected yet and Member States did not have input as to their selection. The WHO Legal Counsel, Mr. Gian Luca Burci responded by saying that his reading of Paragraph 4(3) of WHA59.24 indicated that the Assembly requested the WHO Director-General to "invite experts".

The representative of the United States of America aligned himself with the query by South Africa and further noted that when the resolution was negotiated in May 2006, it was not the intention of his delegation that experts would be selected by the Secretariat prior to the election of the Chair and thus disagreed with the interpretation of the "experts" clause by the WHO Legal Counsel. He further questioned the seating of the experts near the front of the conference room.

Assistant-Director General Howard Zucker (Health Technology and Pharmaceuticals) responded by stating that the experts were selected based on their expertise and represented a broad range of key stakeholders. Norway weighed in to sugggest that the text of WHA 59.24 required that experts be appointed prior to the meeting, but the U.S. rejected this interpretation.

WHO IGWG on Public Health, Innovation and Intellectual Property: Elements of a global strategy and plan of action

2006-11-15T14:31:00.000+01:00

FromGeneva
November 15, 2006
Thiru Balasubramaniam

Between October 5, 2006 to November 9, 2006, the WHO Intergovernmental Working Group on Public Health, Innovation and Intellectual Property (IGWG) released five documents which can be found on the following website. The Elements of a global strategy and plan of action (A/PHI/IGWG/1/4) document states that the "global strategy and plan of action, might include the following elements:

• prioritizating research and development needs
• promoting research and development
• building innovation capacity
• improving delivery and access
• ensuring sustainable financing mechanisms
• establishing monitoring and reporting systems."

In the "building innovating capacity section" one of the areas for action is a recommendation to

promote patent pools of upstream technologies or other mechanisms to promote innovation of products for priority diseases in developing countries.

In the "promoting research and development" section, one of the areas for action proposed is to

promote discovery science in order to identify, validate and build up a sustainable portfolio of new products, whose development is facilitated through appropriate legal arrangements permitting unrestricted access to drug leads identified through the screening of compound libraries for diseases relevant to the public health needs of developing countries.

The "Elements of a global strategy and plan of action document" has been conceived as a basis for discussion by the WHO Intergovernmental Working Group when considering the 60 recommendations of the WHO Commission on Intellectual Property, Innovation and Public Health. The global strategy and plan of action,

suggests some possible elements of a draft global strategy and plan of action, but does not attempt to treat each one comprehensively. The suggestions need to be evaluated from the viewpoint of their technical and political feasibility.

Here below is are the reference numbers and official titles of all five documents.

A/PHI/IGWG/1/1
A/PHI/IGWG/1/1 Rev.1
Provisional agenda

A/PHI/IGWG/1/2
Review of recommendations of the Commission on Intellectual Property Rights, Innovation and Public Health

A/PHI/IGWG/1/3
Status of implementation of resolution WHA59.24

A/PHI/IGWG/1/4
Elements of a global strategy and plan of action

A/PHI/IGWG/1/DIV/1
Guide for delegates to the Intergovernmental Working Group on Public Health, Innovation and Intellectual Property

Athens IGF: Call for an elaboration on a Treaty on Access to Knowledge

2006-10-31T11:20:00.000+01:00

31 October 2006
FromGeneva
Thiru Balasubramaniam

In the discussion session on "Openness" at the Athens Internet Governance Forum moderated by Nik Gowing of BBC World, the representative from the Republic of South Africa posited that the Internet Governance Forum could consider an elaboration on a Treaty on Access to Knowledge as a tangible way forward to find the balance between the rights and obligations conferred by intellectual property and the public interest. James Love (CPTech) called upon his fellow panelists (see list below) to endorse the elaboration on a Treaty on Acces to Knowledge first proposed by the Friends of Development in 2004 at WIPO. Hanne Sophie Greve, former judge at the European Court of Human Rights, endorsed the Treaty on the spot. This panel is being webcast now.

Here is the program and list of panelists.

31 October, 1000-1300

Openness
Session Chairman: Theodoros Roussopoulos, Minister of State of Greece

Moderator: Nik Gowing, Main Presenter, BBC World

* Carlos Afonso, Technical Director of RIT (services and capacity-building network of ICTs)
* Anriette Esterhuysen, Executive Director, APC
* Hanne Sophie Greve, former judge at the European Court of Human Rights
* Joichi Ito, Creative Commons
* Jamie Love, Director, CPTech
* Senator Paschal Mooney, Government Spokesperson on Foreign Affairs (Ireland), broadcaster/ journalist
* Andrew Puddephatt, OBE, various human rights organizations
* Art Reilly, Senior Director, Strategic Technology Policy, Cisco Systems
* Richard Sambrook, Director BBC Global News
* Fred Tipson, Senior Policy Counsel , Microsoft,
* Catherine Trautmann, Member of the European Parliament

IGF: Ambassador David Gross on "Security and IPR"

2006-10-31T08:38:00.000+01:00

31 October 2006
FromGeneva
Thiru Balasubramaniam

The inaugural Internet Governance Forum is well underway in Athens, Greece (30 October-2 November 2006). Created by the UN Secretary-General from the mandate of the Tunis Agenda, it is the first, high-level, multistakeholder forum dedicated to internet governance. From initial impressions, it appears that over a 1000 people are attending the Athens IGF. Yesterday afternoon's panel, entitled "Setting the scene" was moderated by Kenneth Cukier of the Economist. This panel introduced the main themes of this year's IGF: openness, security, diversity and access. On the issue of security, Ambassador David Gross (United States) asserted that,

[t]his is a very serious and important issue for all of us. We think there are certain core principles that, from our perspective, guide us through this difficult process. The question really does touch on the different natures of security. But taking the question about the terrorist aspect of it, for example, we think, first and foremost, that we should never lose sight of the importance of the Internet as a conduit for the free flow of information. And that no one should use these other issues as an excuse for restricting it in ways that are not very carefully circumscribed. So we believe that restrictions on the Internet content have to be done transparently, have to be done as a result of rule of law, which is -- has great care, including the enactment in the rule of law. But, yet, also take into account the fact that illicit uses of the Internet are inappropriate, whether it's IPR violations that we've all dealt with for some period of time, whether it is incitement to violence if the like. So it requires us to do something very important but often very difficult, which is to keep two conflicting ideas in our head at the same time. One is the importance of the free flow of information, which is incredibly powerful. We have seen the rise of democracies around the world that corresponds very closely to the rise of the Internet, from about 30 democracies in the world in the '70s to over 120 today. While at the same time, recognizing that terrorism can create problems, can kill people, through the use of the Internet, and must be stopped as well. But how we do that has to be very carefully done in ways that are carefully tailored, transparent rule of law.

CPTech reaction on WIPO Broadcasting Treaty Decision

2006-10-02T17:19:00.000+02:00

2 October 2006

James Love (CPTech), "The WIPO General Assembly corrected a mistake made two weeks ago. The decision recognized that no one was ready for a Diplomatic Conference at this point. It shows that there are some problems with the way the SCCR is run. Hopefully, the WIPO leadership will get the hint."

Thiru Balasubramaniam (CPTech), "CPTech welcomes the Decision of the WIPO General Assembly to pursue a signal-based approach in this Treaty in lieu of granting dangerous new entitlements to broadcasters. As we made clear to the WIPO General Assembly, convening a Diplomatic Conference at this stage would have been premature."

Broadcasting decision adopted @ WIPO General Assembly

2006-10-02T11:53:00.000+02:00

At 11:30 AM (Geneva time) today, the WIPO General Assembly adopted the following text by consensus:

WIPO General Assembly, 2006
September 30, 2006

ITEM 10: PROTECTION OF BROADCASTING ORGANIZATIONS

Draft Decision

Outcome from the informal consultations, September 27-30, 2006,

Prepared by the Chairman of the SCCR

1. The General Assembly approves the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations under the conditions set out in paragraph 4 below from November 19 to December 7, 2007, in Geneva. The objective of this 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 to the protection of broadcasting and cablecasting organizations in the traditional sense.

2. The Revised Draft Basic Proposal (Document SCCR/15/2) will constitute the Basic Proposal with the understanding that all Member States may make proposals at the Diplomatic Conference.

3. The meeting of a preparatory committee will be convened for June 2007 to prepare the necessary modalities of the Diplomatic Conference. The preparatory committee will consider 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. Two special sessions of the Standing Committee on Copyright and Related Rights to clarify the outstanding issues will be convened, the first one in January 2007, and the second one in June 2007 in conjunction with the meeting of the preparatory committee. It is understood that the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal referred to in Paragraph 2. The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2.

5. The WIPO Secretariat will organize, in cooperation with the Member States concerned, and at the request of Member States, consultations and information meetings on the matters of the Diplomatic Conference. The meetings will be hosted by the inviting Member States.

6. The General Assembly is invited to approve the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations, from November 19 to December 7, 2007, and its preparatory arrangements as recommended by the fifteenth session of the SCCR and as amended above.

WIPO Draft Decision on the "Protection of Broadcasting Organizations"

2006-10-01T14:20:00.000+02:00

This draft decision will be discussed on Monday, 2 October 2006 at the WIPO General Assembly.

WIPO General Assembly, 2006
September 30, 2006

ITEM 10: PROTECTION OF BROADCASTING ORGANIZATIONS

Draft Decision

Outcome from the informal consultations, September 27-30, 2006,

Prepared by the Chairman of the SCCR

1. The General Assembly approves the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations under the conditions set out in paragraph 4 below from November 19 to December 7, 2007, in Geneva. The objective of this 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 to the protection of broadcasting and cablecasting organizations in the traditional sense.

2. The Revised Draft Basic Proposal (Document SCCR/15/2) will constitute the Basic Proposal with the understanding that all Member States may make proposals at the Diplomatic Conference.

3. The meeting of a preparatory committee will be convened for June 2007 to prepare the necessary modalities of the Diplomatic Conference. The preparatory committee will consider 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. Two special sessions of the Standing Committee on Copyright and Related Rights to clarify the outstanding issues will be convened, the first one in January 2007, and the second one in June 2007 in conjunction with the meeting of the preparatory committee. It is understood that the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal referred to in Paragraph 2. The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2.

5. The WIPO Secretariat will organize, in cooperation with the Member States concerned, and at the request of Member States, consultations and information meetings on the matters of the Diplomatic Conference. The meetings will be hosted by the inviting Member States.

The General Assembly is invited to approve the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations, from November 19 to December 7, 2007, and its preparatory arrangements as recommended by the fifteenth session of the SCCR and as amended above.

Notes from WIPO Broadcast Treaty and Patent Harmonization discussion

2006-09-28T12:52:00.001+02:00

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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(the "Dedicator") hereby dedicate the entire copyright in the work of
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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):
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

2006-09-27T11:10:00.000+02:00

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

2006-09-27T10:37:00.000+02:00

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.]

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(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

2006-09-26T12:55:00.000+02:00

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

2006-09-25T23:43:00.000+02:00

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

2006-09-14T10:24:00.000+02:00

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:

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
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.
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.
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.

Public Domain & Open Standards discussion at WIPO: What did Mexico, India, Chile and Australia say?

2006-07-12T14:31:00.000+02:00

12 July 2006
Thiru Balasubramaniam

The recently concluded WIPO Provisional Committee on Proposals related to a Development Agenda (PCDA) meeting (26-30 June 2006) saw a rich discussion on the public domain, competition policy and open standards despite the failure of the PCDA to reach an agreement on recommendations to the WIPO General Assembly on how to tangibly integrate the development dimension into the core of all the Organization's activities.

At the conclusion of the first session of the WIPO PCDA in February 2006, the Chair (Ambassador Rigoberto Gauto Vielman of Paraguay) arranged the 111 proposals submitted thus far into six clusters (A) Technical Assistance and Capacity Building, (B) Norm-Setting, Flexibilities, Public Policy and Public Domain, (C) Technology Transfer, Information and Communication Technology (ICT) and Access to Knowledge, (D) Assessments, Evaluation and Impact Studies, (E) Institutional Matters including Mandate and Governance and (F) Other Issues. Although this approach appeared to give a coherent blueprint on how to structure the discussions, critics of this approach asserted that this thematic clustering removed the 111 discrete proposals from their respective contexts.

With respect to discussions on "Cluster B" (Norm-Setting, Flexibilities, Public Policy and Public Domain", Mexico reprised its role as antagonist par excellence to the spirit and purpose of the Development Agenda. With regard to specific proposals in Cluster B relating to establishing a Treaty on Access to Knowledge and Technology, facilitating access to knowledge and technology for developing and least developed countries and developing an "international framework to deal with issues of substantive law relating to anti-competitive licensing practices", Mexico asserted these proposals would "invade UNESCO's and UNCTAD's mandates".

In addition, Mexico argued that WIPO did not have the competence to deal with the TRIPS Agreement and therefore Mexico could not accept the language of a proposal which called upon WIPO to "protect and promote in all negotiations the development oriented principles and flexibilities contained in existing Agreements, such as the TRIPS Agreement". On the proposals related to examining "free software development and creative commons models" and WIPO's promotion of models based upon "open collaborative projects to develop public goods, as exemplified by the Human Genome Project and Open Source Software", Mexico's appeared inextricably wedded to defending the interests of proprietary software publishers as the Mexican delegation noted that it was "inappropriate to express government support for these vehicles. This should be a matter for the market to decide, not the government."

In refreshing contrast to the positions advocated by Mexico, the Indian delegation called upon WIPO to study open standards, particularly in the area of telecommunications, as this was something the Indian delegate felt would support development. With respect to "open source software", the Indian delegate stated that "open source software uses the IP system. Open source software has already provided a good benefit for technology transfer, for keeping customer not locked to a proprietary system."

With respect to the public domain, Chile gave an impassioned defence of why WIPO should engage in further examination of proposals to "consider the protection of the public domain within WIPO's normative processes" and to draw "up proposals and models for the protection and identification of, and access to, the contents of the public domain". Furthermore, Chile supported the proposal for WIPO to have an electronic forum devoted to the discussion creative commons, systems of free and open licenses, a Treaty on Access to Knowledge and a Treaty on Medical R&D. The Chilean delegate noted that in the context of upward harmonization of patent and copyright norms,

often the line between what is protected and what is in the public domain has become more hazy, more diffuse, for instance because we have increased the rights holders' terms of protection, and introduced laws for technological protection measures to give more protection to rightholders. The objective of our proposal is to give more certainty to the users of IP works and society in general.

Much has been done by WIPO to identify what is in the public domain. In particular, in relation to scientific knowledge, much has been done with SPLT on disclosure of patent info but now we think that there are things that governments can do-e.g. to indicate when materials falls into the public domain. We gave the example of Canada with respect for orphaned works. There are many studies that show the return on works is about 10 years.

Regarding copyright, we know that the threshold of what is considered original and subject to protection is low. We gave examples of legislation that have extended terms of protection retroactively.

Our proposal is that governments would have an obligation to notify -- via a world database - all those works and inventions that fall into the public domain.

As far as patent goes, there is good argument for doing so. It would improve quality of patents by making access to scientific information in the public domain.

The IP system is effectively a contract between users and rightsholders. We want to make that contract operational.

On topic of exceptions and limitations, it was said that this was not within the competence of WIPO. This is not so. We have made a request in WIPO SCCR for a study of the topic of L&E for disabled, educational purposes, libraries and archives.

The delegation of Australia showed considerable flexibility in supporting in principle proposals to examine non-exclusionary models for fostering innovation and transfer of technology (e.g. free software development and creative commons models) as well proposals which promoted "models based on open collaborative projects to develop public goods". This was perhaps the only OECD Member State that voiced support of proposals to look at open collaborative models.

Despite the rich discussion of the public domain, open standards and open collaborative models during the PCDA, the impasse reached at the final stages of the WIPO PCDA threaten to derail the initial constructive spirit of this Committee. One hopes that the WIPO General Assembly will provide the political impetus to renew the Development Agenda mandate and specifically mainstream discussions of open standards, limitations and exceptions, the public domain and open collaborative models into the norm-setting committees of WIPO such as the Standing Committee on Copyright and Related Rights and the Standing Committee on the Law of Patents.

[Inputs from: Gwen Hinze -Electronic Frontier Foundation, and Teresa Hackett-Electronic Information for Libraries]

WIPO Development Agenda meeting currently in informal discussions on procedure

2006-06-26T12:24:00.000+02:00

26 June 2006
Monday

12:19 PM

The second session of the Provisional Committee on Proposal related to a WIPO Development Agenda (PCDA) is taking place at WIPO headquarters in Geneva from 26 June to 30 June 2006. Among the issues at stake is how this committee will take stock of the 111 proposals submitted since September 2004 and make a decision to the General Assembly on how WIPO implements (if at all) or establish a Development Agenda. Last Friday, the 15 Members of the Friends of Development (Bolivia, Brazil, Cuba, Dominican Republic, Equador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela) submitted a proposal to the PCDA on a "Decision on the PCDA on the Establishment of a WIPO Development Agenda" (PCDA/2/2). This proposal comes with an introductory note explaining the purpose of the submission. Here are some excerpts from the introduction which note that the

aim of the document is to help the PCDA to fulfill the mandate entrusted to it by the 2005 General Assembly, by submitting a report with recommendations to the next General Assembly. In this connection, the document contains a series of decisions relating to normative activities, public policies and the public domain, technology transfer, access to knowledge, technical assistance, impact studies and assessments, and WIPO’s governance and mandate.

As regards technical cooperation for example, an effort has been made with the language in order to accommodate almost all the proposals put forward by the African Group, Bahrain and a group of countries, United States of America and the Group of Friends of Development. On that basis, the proposal would provide a basic framework for technical assistance that would allow effective progress to be made on issues that require further technical debate, as is the case for example with the proposals relating to financing mechanisms. Certain proposals of the Group of Friends of Development, which have not been included in this proposed recommendation, will be subject to further consideration at the 2007 General Assembly.

As to WIPO’s normative activity, flexibilities, public policies and the public domain, the broad language used in the wording of the proposal was intended to cover the vast majority of proposals put forward by the developing countries; in other words, the African Group, Chile and the Group of Friends of Development, some of which have been the subject of debate since 2004.

Today the meeting began 10:32 AM and was suspended at 10:47 AM to discuss matters of procedure with regional coordinators and interested parties. The informal meetings are still in session. Sources say that the Group B countries (WIPO code for rich countries) support the Chair's suggestion to "cluster" the proposals into three baskets: (1) consensus, (2) emergent consensus and (3) no consensus. The Friends of Development group opposes this approach. It is unclear at this stage as to how the week will unfold and what type of decision this committee will take with respect to the Development Agenda.

US delegation opposes consumer groups' inclusion on WIPO ACE panels

2006-05-17T11:44:00.000+02:00

17 May 2006
Thiru Balasubramaniam

As mentioned in my earlier blog entry, WIPO hosts enforcement beauty contest (aka Advisory Committtee on Enforcement), the WIPO Advisory Committee on Enforcement (ACE) is taking place from 15-17 May 2006. The first two days saw 15 presentations, 13 made by WIPO Member States Antigua & Barbuda, Australia, Brazil China, Lebanon, Malaysia, Nigeria, Romania, Serbia & Montenegro, South Africa, Spain, Sri Lanka and Switzerland and 2 presentations from industry group NGOs, the International Trademark Association (INTA) and the International Federation of Phonogram and Videogram Producers (IFPI). The delegate from INTA was Ms. Toe Su Aung the General Counsel for the BATMark (British American Tobacco's IP management company).

Yesterday, the delegate from Third World Network made a pointed intervention to the Committee which noted the absence of any consumer voices on the WIPO ACE panels. Today in its intervention, Brazil called for the consumer voice to be taken into consideration at these deliberations and requested that consumer organizations be represented in the WIPO ACE panels. The delegate (Paul Salmon) from the United States, however, opposed the inclusion of consumer groups on panels on the Advisory Committee on Enforcement as he noted that consumer groups did NOT fall into the mandate of the ACE which only mentions consultations with the private industry. Argentina took the floor to call for greater public interest NGO participation in this body; Brazil also reiterated its point that all stakeholder views be taken into consideration in the WIPO ACE.

WIPO hosts enforcement beauty contest (aka Advisory Committtee on Enforcement)

2006-05-15T16:17:00.000+02:00

15 May 2006 (Monday)
Thiru Balasubramaniam
Morning Session

The World Intellectual Property Organization (WIPO) is holding a beauty contest on enforcement, the third session of the Advisory Committee on Enforcement (ACE) which takes place at the WIPO headquarters in Geneva from 15-17 May 2006. For the first two days, presenters from Antigua & Barbuda, Australia, Brazil China, Lebanon, Malaysia, Nigeria, Romania, Serbia & Montenegro, South Africa, Spain, Sri Lanka and Switzerland will make interventions on "awareness raising, training and education in the field of IP enforcement". In addition, two industry group NGOs, the International Trademark Association (INTA) and the International Federation of Phonogram and Videogram Producers (IFPI) are also on the agenda. Although it may be too sweeping to label all the presentations thus far as panegyrics to the enforcement of "intellectual property", it would appear that the main purpose of the ACE is for WIPO Member States to engage in an exercise of self-congratulation under the guise of an information exchange on their respective enforcement, training, and awareness raising activities

The morning panel included the following speakers (see links for written presentations): (1) H.E. Mr. Ion Codescu, Secretary of State, Ministy of Justice, Romania, (2) Professor Dora N. Akunyili, National Agency for Food and Drug Administration and Control (NAFDAC), Director-General, Nigeria, and (3) Dr. Karunaratna, Director of Intellectual Property, IP Office, Sri Lanka.

Among the nuggets of information gleaned from the morning session was the fact that Romania ratified the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty in 2001 as part of its efforts to harmonize its legislation above and beyond what is required by the TRIPS Agreement even before it was ratified by 15 original Member States of the European Union (Romania is the on the EU accession track). Professor Akunyili from Nigeria noted that parallel importation of pharmaceuticals was not permitted in Nigeria because it caused confusion in efforts to stem counterfeiting. One would hope that further discussions of this Advisory Committee on Enforcement do not further conflate the parallel importation of legitimate patented products with the practice of counterfeiting.

Libertarian think tank (IPN) throws drinks/canapes bash on eve of World Health Assembly

2006-05-12T19:19:00.000+02:00

12 May 2006
Thiru Balasubramaniam

The libertarian think tank, International Policy Network (IPN) an active defender of GMO foods, water privatization and the tobacco industry, and a constant foe of of efforts to control global warming is hosting a drinks and canapés reception at the five-star Hotel Intercontinental in Geneva on the eve of the World Health Assembly (Sunday, 21 May 2006) from 6:30 PM to 8:30 PM.

The swanky reception will be preceded by a panel moderated by Julian Morris, Executive Director of the International Policy Network. Panellists include: Bibek Debroy from PHD Chamber of Commerce and Industry (India), Barun Mitra from the Liberty Institute (India), Jasson Urbach, Africa Fighting Malaria (South Africa) and Philip Stevens, International Policy Network (UK). The IPN seminar will focus on "intellectual property, innovation and health" and the panellists wil "provide alternative perspectives on the intellectual property debate that members of the World Health Assembly will consider during its 59th annual meeting (22-27 May)". These "alternative perspectives" will no doubt parrot the findings of the Civil Society Report on Intellectual Property, Innovation and Health, a coalition of 16 libertarian NGOs. Although the title of this report mimics the WHO Commission on Intellectual Property, Innovation and Public Health (CIPIH) the Civil Society report focuses on health systems, taxes and tariffs on medicines, price controls and drug registration.

Barun Mitra's Liberty Institute is a member of IPN. According to
gmwatch.org, Barun Mitra "lobbied hard for commercial approval for Monsanto's GM cotton, claiming there should be 'free access' to new technologies without any government interference". The Liberty Institute is a supporter of the tobacco industry as well. Mitra contended that the "anti-tobacco crusade from the West, like the environmental one as manifested at the WTO meeting Seattle last December, is the newest manifestation of the neo-imperialistic desires". Bibek Debroy has been a fellow of the Liberty Institute; he is a critic of compulsory licensing in developing countries. Jasson Urbach's outfit, Africa Fighting Malaria, is an NGO dedicated to promoting the use of DDT to combat malaria. It's director is Richard Tren who delivered a rather inelegant critique on the proposal to create an Essential Patent Pool for HIV/AIDS at last year's World Health Assembly.

Governments and health campaigners truly dedicated to the protection of public health and the promotion of access to medicines for all may want to consider giving this reception a miss, no matter the quality of IPN's drinks or canapés.

WIPO copyright committee comments on Brazilian and Chilean proposals

2006-05-08T10:37:00.000+02:00

9 May 2006
Thiru Balasubramaniam

[This blog entry is indebted to the meticulous notes takend by: Jason Pielemeier-Yale Information Society Project, Gwen Hinze -Electronic Frontier Foundation, and Rufus Pollock- Open Knowledge Foundation]

The WIPO Standing Committee on Copyright and Related Rights (SCCR) which met last week (1-5 May 2006) to deliberate on a proposed broadcasting/webcasting treaty played host to robust discussions on limitations and exceptions. At stake in this treaty are practices we now take for granted but are now under threat including podcasting and C-Span's broadcasts of public events including Congressional and other political events. Witness the recent C-Span takedown order of YouTube's broadcast of Stephen Colbert's speech at the White House Correspondents Dinner asserted through copyright. One can only imagine how such disputes would play out with an additional layer of exclusive broadcasting rights.

At the heart of the debates on limitations and exceptions (L&E) were proposals submitted by Brazil and Chile at the previous SCCR in November 2005 and the Peruvian proposal submitted during last week's meeting which included creative proposals on access to knowledge, defense of competition and protection and promotion of cultural diversity to safeguard the public interest. Much of the deliberations focused on whether the proposed limitations and exceptions were "consistent" with the principles of the 3-step test.

The first part of the Brazilian proposal (Article X) included a "General "Principles" clause stating that,

Nothing in this Treaty shall limit the freedom of a Contracting Party to promote access to knowledge and information and national educational and scientific objectives, to curb anti-competitive practices or to take any action it deems necessary to promote the public interest in sectors of vital importance to its socio-economic, scientific and technological development.

The second part of the Brazilian proposal (Article Y) included a "The Protection and Promotion of Cultural Diversity" clause stating that,

Nothing in this Treaty shall limit or constrain the freedom of a Contracting Party to protect and promote cultural diversity. To this effect:

(a) In modifying their domestic laws and regulations, Contracting Parties will ensure that any measures adopted pursuant to this Treaty are fully consistent with the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.

(b) Contracting Parties also undertake to cooperate so as to ensure that any new exclusive rights conferred by this Treaty are applied in a manner supportive of and that does not run counter to the promotion and protection of cultural diversity.

.

One early source of contention was the placement of the Brazilian and Chilean proposals in the working draft not in the draft basic proposal (DBP). The draft basic proposal was perceived to contain mature proposals ready for an early harvest while the working draft was deemed to have secondary status as a document containing "alternative language". After repeated interventions by Brazil, Chile and support by other countries insisting that these aforementioned proposals be treated on an equal footing in one text, the Chair (Mr. Jukka Liedes of Finland) agreed to consider the proposals in the draft basic proposal and the working paper on equal footing.

Japan stressed that in its view the Brazilian language was inconsistent with the WIPO "Internet" treaties (WIPO Copyright Treaty and WIPO Performers and Phonograms Treaty). The Japanese delegate characterized the Brazilian provisions as misleading and suggested that the 3-step test could adequately address concerns on limitations and exceptions.

Mr. Tilman Lueder (European Commission) who spoke on behalf of the European Communities and its 25 Member States and the acceding countries of Bulgaria and Romania noted his delegation's view that Brazil's "General Principle" Article X was preambular in nature and thus not appropriate as operative text. Ms. Julie Samnadda (European Commission) stressed that cultural diversity was something that the European Communities regarded very seriously. She stated that,

[w]e are a party to the UNESCO convention. Nevertheless, as regards to copyright norm-making, we have traditionally taken the view, I draw your attention to Recital 17 of UNESCO Convention on Cultural Diversity which states that parties recognize importance of IP
The view of the Community has always been (in that and previous treaties - WPPT/WCT, which we have adopted but not yet fully ratified) of the view that healthy copyright protection goes hand in hand with cultural diversity.

In his response, the Brazilian delegate noted that the objectives of access to knowledge (a2k), education and science were common to the majority of WIPO Member States. Brazil stressed that it wanted to safeguard a2k, education and science from encroachment from an untested new layer of rights that would arise from this Treaty especially considering unknown consequences and future technological developments and the uncertainty that still existed as to whether the Treaty covered signal or content.

With respect to the Japanese intervention, Brazil reminded Member States that Brazil was not a party to the WIPO "Internet" treaties and "did not accept these treaties as a basis for negotiation' or as precedent". The delegate noted that

[w]e think in many ways these depart from IP tradition and do not benefit developing countries...Regarding the EU comment as to the public interest clauses as being more preamble in nature. We think not because there are many such types of general principle articles found in other agreements. Article 7 of the TRIPS Agreement on objectives is just as general in nature as our proposal. We think they are texts of a similar nature and in TRIPS this general wording found its way in under a substantive article. It loses weight if it is relocated to the preamble part. It needs to have the same legal weight and the same treatment as the objectives of protecting private rights. We do not favour treating private rights on a better footing than public interest objectives.

The delegations of Egypt and South Africa gave unequivocal support of the Brazilian proposal. The Egyptian delegate noted that the importance of including Article X on General Principles and Article Y on the Protection and Protection of Cultural Diversity in the operative part of the Treaty.

The Chilean "Defense of Competition" proposal tracks some of the language of Article 40.2 of the TRIPS Agreement. With respect to Chile's submission, the Australian delegate noted his concern that the language seemed to impose a positive obligation to incorporate "competition principles with respect to intellectual property" in general, not just the rights proposed under this treaty". The Australian delegate echoed Senegal's concern that the nature of the Chilean article on competition "seemed somewhat wider than the subject matter of the broadcaster's treaty".

Japan objected to Chile's proposal on defense of competition by noting its absence in the WIPO "Internet" Treaties.

Chile responded to Australia's concerns by noting that the Defense of Competition language had no obligation with respect to other types of "intellectual property" not covered by the broadcasting Treaty. With respect to Japan's concerns, Chile wryly responded by stating that,

[t]here is the question of Japan that this obligation allowed by art x [Defense of Competition provision] will interfere with WIPO treaties, the intention of this article is not to affect any other agreement. We believe that the better option for this treaty is not to have an effect on other agreements. Therefore that shouldn't be a problem. Also, with regard to the question of Senegal on the uncertainty that could result from paragraph 2, this provision is mirrored from 40.2 from TRIPS, which is already a standard principle in international law. Therefore we are not creating any additional uncertainty.

At the close of discussions on "General Principles" and "Defense of Competition", Brazil underscored the point that Members could not use the WIPO "Internet Treaties" as a basis for negotiations and the fact that since Members were entering into unchartered waters, they needed safeguards on board before embarking on any new broadcasting Treaty negotiations.

WIPO copyright committee discusses simulcasting/webcasting and mulls way forward

2006-05-04T18:15:00.000+02:00

5 May 2006
Thiru Balasubramaniam
16:59 (Geneva time)

This is the last hour of the 14th Session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) meeting yet again to discuss a proposed treaty for the protection of broadcasters, cablecasters and webcasters. Simulcasting has been discussed over the last two days. An example of simulcasting would be the British Broadcasting Corporation (BBC) showing a speech or a movie in the public domain on its website.

As currently defined by WIPO's draft basic proposal, simulcasting is covered by Article 6

Broadcasting organizations shall enjoy the exclusive right of authorizing the retransmission of their broadcasts by any means, including rebroadcasting, retransmission by wire, and retransmission over computer networks.

This wording would give broadcasters the right of simultaneous retransmission over a computer network. Article 6 has been viewed with concern by some as a Trojan horse mechanism of giving "webcasting" privileges to traditional broadcasters. The Chair (Jukka Liedes of Finland) noted that there was considerable opposition to the inclusion of webcasting but some broader support for simulcasting. However, delegations such as India, Brazil and South Africa expressed reservations to including simulcasting in the treaty. India suggested deleting the phrase "by any means" and "over computer networks".

At the wrap-up of last night's session, Mr. Liedes underscored the importance he attached to retransmission rights which would include simulcasting. Mr. Liedes stressed that deleting references to simulcasting would empty the whole treaty of its purpose. He also noted that the deletion of simulcasting would deprive traditional broadcasters of protection of their broadcasts retransmitted over the internet.

There is a danger if simulcasting is covered under this treaty, webcasting will creep back into a later formulation of the Treaty text or a subsequent protocol as evidenced by the intervention of the United States of America today which articulated its concern that excluding webcasting while including simulcasting would confer upon broadcasters and cablecasters an unfair advantage over such corporations as Yahoo.

The delegate from India noted that while his delegation could "sympathize with concerns of broadcasting organization about signal piracy or unauthorized retransmission over computer networks" this would be a difficult obligation to administer because of limited knowledge of internet enforcement.

He stressed that it is

difficult to know where source of digital transmission is, so to be effective enforcement would amount to effective regulation of entire Internet. we therefore find it very difficult. While it seems attractive conceptually, it is fraught with many practical, legal uncertainties. Article 6 needs to be cleansed of the words "by any means" and "over computer networks"...Simulcasting or transition by computer networks should not be contained in the draft basic proposal on traditional broadcasting...I would remind many that we often have technology neutral goals but in actuality many member states have much more specific laws relating to the Internet and other forms of digital transmission and case law on the subject is extremely limited. Therefore it is better and more appropriate for all of us to hasten slowly and not plunge, until we know the consequences of what is involved.

Mr. Tilman Lueder from the European Commission speaking on behalf the European Communities and its 25 Member States gave a lengthy intervention on the nature of simulcasting. Mr. Lueder highlighted that in large countries such as the United States, Brazil, India and Canada, "retransmission is the lynchpin to make a signal more perceptible over long distances" where signals could not travel coast to coast but needed to be relayed. Mr. Lueder noted that the protection of digital signals was of utmost importance and underscored that fact that television is mostly about entertainment and not just limited to educational and scientific purposes. He remarked that if broadcasters and those who scheduled and assembled content were not protected, there would nothing left to steal.

India responded by thanking the European Communities for being educated on the distinction between analog and digital signals. He stated that content is now being digitalized, but the difference is that the content may be digitalized but it may still be transmitted over analog waves.

We are talking about retransmission on the terrestrial network where signal does get abated and needs to get 'boosted' and retransmitted, whereas digital signal does not abate. Satellite carriers carry digital signals in a more efficient manner. Therefore 'retransmission' has a very different meaning today. Notwithstanding this issue as to what retransmission exactly means. What we are talking about is the IPR over those transmissions. We need to define the broadcast clearly so that we know who has IPR over that broadcast. When we talk about the internet we are talking about something outside of traditional broadcasting. My understanding of Berne and TRIPS is that even the content owners don't have full rights over their work on the internet to then assign a new right (which does not yet exist) to broadcasters in relation to the internet is unsupportable. What we are really talking about is the IPR over those transmissions and as I mentioned, the broadcast itself has to be defined to understand who has the IPRs over the content. Copyright owners do not have full and adequate protection themselves on the Internet, therefore to give broadcasters rights over the Internet becomes even more untenable. Therefore that is why we have been talking about the IPRs over content. A broadcast needs to be defined with respect to its relationship with intellectual property.

As there was considerable opposition to webcasting and simulcasting in the draft treaty text for the protection of broadcasting organizations and cablecasting organizations, Mr. Liedes suggested the modalities for the following SCCR:

A. Protection of traditional broadcasting and cablecasting organizations.
1. One more meeting of the SCCR before the General Assembly (September/October 2006)

2. The agenda of that meeting will be confined to protection of broadcasters and cablecasters in the traditional sense (broadcast and cable)

3. A revised basic draft basic proposal will be prepared for the meeting and all efforts will be made to make it available to the Member States by August 1 2006. It will be made on the basis of SCCR/14/2 and SCCR/14/3 and now-existing proposals and taking account the discussions of this committee.

4. There will be a recommendation to the GA to convene a DC at a suitable time in 2007.

B. A proposal on protection of webcasting and simulcasting.
1. The deadline for the proposals foreseen at 14th session of SCCR concerning these webcasting and simulcasting, will be Aug. 1 2006.

2. The revised document on protection of webcasting and simulcasting will be prepared on basis of SCCR/14/2, and the proposals, and taking into account discussions of the committee

3. A consultation will be taken on the matter of a meeting of an SCCR to be convened after the General Assembly.

In response to this proposed work program, the United States noted their concern about the "missed opportunity" undertaken to create now under the proposal to separate consideration of webcasting from the broadcasting/cablecasting instrument.

The United States suggested that if the General Assembly did not make a recommendation on convening a Diplomatic Conference, the webcasting could be considered along with traditional broadcasting in following sessions of the Standing Committee on Copyright and Related Rights.

Although it appears that simulcasting and webcasting will not be included in the proposed instrument on broadcasting and cablecasting, we should not rule out their re-appearance in subsequent meetings of the WIPO Standing Committee on Copyright and Related Rights.

[Inputs from: Jason Pielemeier-Yale Information Society Project, Gwen Hinze -Electronic Frontier Foundation, and Rufus Pollock- Open Knowledge Foundation]

Deadlock in Informal WIPO patent committee

2006-04-14T18:17:00.000+02:00

14 April 2006
Thiru Balasubramaniam

An informal session (meaning there is no official written record of this meeting) of the WIPO Standing Committee on the Law of Patents (SCP) met from 10-12 April 2006 in Geneva at WIPO headquarters. The mandate of this informal meeting, set by the WIPO General Assembly in 2005 was,

to agree on a work program for the SCP, taking into account the discussions of the open forum.

At the end of the three days on intense, informal consultations, WIPO Member States could not agree on a work plan for the WIPO SCP in July. Consequently, the Decision was forwarded to the General Assemblies in September 2006. As a result, there will be no formal meeting of the Standing Committee on the Law of Patents this July.

The backdrop to this process has been the assiduous efforts by the United States, Japan and the European Union to conclude a Substantive Patent Law Treaty (SPLT) in WIPO. The elements of such a treaty include: definition of prior art, grace period, novelty, and inventive step ("prior art package". The demandeurs of patent harmonization assert that these four issues are "mature" and ready for "harvesting" into a Treaty process. The Friends of Development (FOD) and other Member States including Pakistan have opposed the attempts to fast-track the prior art package at the expense of broader cross-cutting development issues of concern to developing countries. One of the reasons developing countries have opposed fast-track patent harmonization is the fear that this process would erode their policy space and erode flexibilities afforded to them under the TRIPS Agreement, the Doha Declaration and other international instruments.

On Tuesday, 11 April 2006, the Friends of Development submitted a "List of issues for the work program of the SCP, taking into account the discussions of the open forum" which included 9 issues: (1) development and policy space for flexibilities, (2) exclusions from patentability, (3) exceptions to patent rights, (4) anti-competitive practices, (5) disclosure of origin, prior informed consent and benefit-sharing, (6) effective mechanisms to challenge the validity of patents, (7) sufficiency of disclosure; (8) transfer of technology; and (9) alternative models to promote innovation.

During the informal meeting of the SCP, the United States and Japan insisted on the prior art package's inclusion in the work plan of the SCP but were generally averse to the inclusion of all the Friends of Development's package citing concerns that the SCP program would then become "unmanageable". Much of the informal SCP was devoted to debating over how many issues the SCP work plan should take on board.

Argentina, speaking on behalf of the Friends of Development, insisted that all issues be considered on an equal footing without prejudging the outcome. Argentina asserted that the purpose of the meeting was clearly outlined in the General Assembly's mandate which instructed the informal SCP "to agree on a work program for the SCP, taking into account the discussions of the open forum". The WIPO Open Forum on the draft Substantive Patent Law Treaty (SPLT) played an important role in the informal SCP discussions as many developing countries noted its import within the General Assembly mandate while other delegations downplayed its significance. With respect to the FOD's package of 9 issues, the United States and Portugal objected to the inclusion of "alternative models to promote innovation" in the SCP on the ground that it was outside its remit. Austria, speaking on behalf of the European Communities and its Member States emphasized its support for the US/Japan package and its willingness to include three of the FOD issues, exclusions from patentability, exceptions to patent rights, and sufficiency of disclosure in the SCP work plan.

Algeria noted that the informal SCP should limit its discussion to the mandate and draw up a work plan that covered all the issues without prejudging the issues rather than debating what constituted the "ideal" number of issues for the SCP work plan.

Pakistan reminded the body that previous attempts were made in restricted conclaves to decide on this process in a non-inclusive matter (Casablanca). The delegate stressed that this should not be repeated. He noted

We are NOT in a normative phase. The mandate is to give a form to this discussion. We arrived here with baggage (our past positions on this). It is encouraging to note, that at least the number of issues present in the form has been reduced to 13. There has been discussion about fast track versus a single undertaking approach. It's a menu of issues, nothing has been served. The batting order has yet to be decided. Let us be inclusive. My formal proposal is to have a closed list of 13 issues that can be taken forward to the SCP so they can be treated on an equal footing.

Kenya supported Pakistan's intervention and challenged Portugal's assertion that some issues were not relevant to this SCP posing the question as to why only the prior art package issues were considered "mature".

In the afternoon session of the final day of the informal SCP, consensus could not be reached on a work plan for the SCP. Although the EU indicated its willingness to address three of the FOD package, this was not sufficient for the Friends of Development. Switzerland, speaking on behalf of the Group B countries (industrialized countries), noted that without a clear fast-tracking of the prior art package (prior art, grace period, novelty, and inventive step), it could not accept the Friends of Development's demands for the inclusion of its 9 issues along with the prior art package.

The Chair of the third day's session, Mr. Ron Marchant (Chief Executive and Comptroller General, The Patent Office, United Kingdom), concluded,

Unfortunately it is not close enough to fulfil one leg of the requirement. So my understanding is that it is premature to move ahead with SCP program. We need to rethink our paradigms in relation to that. We need to prepare for the General Assembly and be clear as to whether we think it is better to suspend the process for a period as not yet mature enough, in that circumstance.

WIPO Deputy-Director General Francis Gurry stated that communication from this meeting would be that "the meeting was unable to agree on a work plan for July SCP and consequently the Decision was forwarded to the General Assemblies in September".

Certain developing country delegates and other experts close to the negotiations expressed concern that the deadlock in the informal session of the WIPO SCP could have untoward consequences on other WIPO processes such as the WIPO Development Agenda and the WIPO Intergovermental Committee on Genetic Resources, Traditional Knowledge and Folklore.

Big pharma creates new forum to court the Geneva diplomatic community

2006-04-05T20:21:00.000+02:00

5 April 2006
Thiru Balasubramaniam

The International Federation of Pharmaceutical Manufacturers and Associations (IFPMA), the international lobbying arm of big pharma headquartered in Geneva, Switzerland has created the "Geneva Pharma Forum (GPF)" as a

forum for discussion and interaction for the Geneva diplomatic community involved in the public health issues. It is organized as a discussion panel, during which experts from the pharmaceutical industry, academia and other settings present on specific health-related topics, followed by an open debate involving the attendees (GPF).

The second event of their 2006 Series, entitled "Intellectual Property as a Powertool for Development" will feature Dr. John Kilama, President of the Global Bioscience Development Institute (GBDI). IFPMA will provide a free sandwich lunch to participants to this event which will take place on Thursday, April 20, 2006 from 12:00 noon to 14:30 at the Centre de Conférences de Varembé (CCV) Room A, 9-11 rue de Varembé, Genève.

The organizers of this event include Susan Crowley (Chair, IFPMA Partnerships and Public Health Advocacy Committee) and Eric Noehrenberg (IFPMA Director, International Trade and Public Health Advocacy Committee Market Issues).

In addition to courting the diplomatic community, the IPFMA's Geneva Pharma Forum has sent out invitations to officials at WIPO, WHO, WTO and a number of public private partnerships.

The title of the event, "Intellectual Property as a Powertool for Development" bears close resemblance to a publication by WIPO Director-General Kamil Idris' book "Intellectual Property: A Power Tool for Economic Growth" published in 2003. John Kilama is a former employee of DuPont Company. In an opinion piece entitled Protecting patents protects patients in 29 July 2005, Dr. Kilama opined that the Development Agenda as "predicated on the dubious proposition that IP is to blame for many of the ills in the world. Implementing such an agenda would likely to counterproductive." In this editorial Dr. Kilama criticized the examination complementary systems of innovation including "open-access publishing, open-source software development and increased government funding for R&D". In light of the WHO Executive Board resolution (EB 117.R13) on a Global framework on essential health research and development submitted to the World Health Assembly for consideration, it would be interesting to note if big pharma uses this Geneva lunchtime seminar as a platform to attack the resolution on a Global framework on essential health research and development.

John Kilama

Proposed WIPO Broadcasting/Webcasting treaty text: Winners' proposals and Graveyard proposals

2006-03-31T13:15:00.000+02:00

Saturday, 1 April 2006
Thiru Balasubramaniam

The draft texts of the proposed broadcasting/webcasting treaty are out. There are two documents-a Draft Basic Proposal and a Working Paper. In a nutshell the draft Basic Proposal can be understood as the repository of "winners' proposals" and the working paper can be understood as the graveyard of "alternative proposals" to the draft broadcasting/cablecasting/webcasting treaty. Interestingly, webcasting which has received limited support (mainly a US/Yahoo/News Corporation initiative), has made it into the Draft Basic Proposal as a non-mandatory "opt-in" provision embedded in the Appendix of the paper. Despite webcasting's appearance as a "non-mandatory opt-in provision", its mere adoption by a few key players (US, EC, Japan) would have deleterious effects on the way the Internet currently operates.

The 14th meeting of the WIPO Standing Committee on Copyright and Related Rights (1 May-5 May 2006) is tasked with drafting a broadcasting/webcasting treaty that will affect copyright owners and consumers by creating a new layer of rights on the internet, threatening the public domain, and introducing a brand new transmission right.

In preparation for the upcoming Standing Committee, the SCCR Chair, Jukka Liedes (Director, Culture and Media Division, Ministry of Education and Culture, Finland) in cooperation with the WIPO Secretariat have drafted the two aforementioned papers: (1) a Draft Basic Proposal for the WIPO Treaty on the Protection of Broadcasting Organizations including a Non-Mandatory Appendix on the Protection in Relation to Webcasting (SCCR/14/2) and (2) a Working Paper for the Preparation of the Basic Proposal for a Treaty on the Protection of Broadcasting Organizations (SCCR/14/3). The two documents raise many issues including process issues at WIPO. It's all wrapped in good bureaucratic language but it's still sausage/chorizo/saucisse.

In his introductory notes to the draft basic proposal, Chairman Liedes cites the decision of the 32nd session of the WIPO General Assembly (26 September - 5 October, 2005) which stated that

two additional meetings of the Standing Committee on Copyright and Related Rights (SCCR) would be scheduled to accelerate discussions on the second revised Consolidated Text (SCCR/12/12/ Rev.2) and on the Working Paper (SCCR/12/5 Prov.). These meetings shall aim to agree and finalize a Basic Proposal for a treaty on the protection of the rights of broadcasting organizations in order to enable the 2006 General Assembly to recommend the convening of a Diplomatic Conference in December 2006 or at an appropriate date in 2007.

In plain English the proponents of a broadcasting/webcasting treaty want to convene a Diplomatic Conference as soon as possible.

According to Mr. Liedes, the November 2005 Standing Committee reached an understanding that the new consolidated text would be drafted for the 14th session of the SCCR. Ostensibly following the mandate of the General Assembly, Chairman Liedes and the Secretariat have culled the consolidated text into a Draft Basic Proposal and dumped the "alternative proposals" into the Working Paper effectively separating the "wheat" from the "chaff". The Working Paper also includes new proposals received at the November 2005 SCCR including the Brazilian (general public interest clauses) and Chilean (defense of competition) proposals. The introductory note to the Basic Proposal leaves open the possibility of elements of the Working Paper to yet be incorporated into the treaty text and stresses there is no "agreement on any element" on the content of the Draft Basic proposal and "is open for changes based on the discussions on the Draft Basic Proposal and the Working Paper in the Committee".

With respect to the process, it would be interesting to know how the Chairman and the International Bureau paired down the consolidated text into the Draft Basic Proposal (SCCR/12/2) and the Working Paper (SCCR/12/3) considering that certain provisions presented as "clean draft text" only received support from few delegations. Furthermore, webcasting, which even the Chair admitted earlier as having limited support has found it's way into the Draft Basic Proposal as an appendix; it is presented as a non-mandatory opt-in provision.

An examination of Article 1 of the Draft Basic Proposal, Working Paper and the Second Revised Consolidated Text underscores the absence of any logical criteria used in the selection of "clean text" as opposed to "alternative provisions".

For example, Article 1.1 (Relation to Other Convention and Treaties) of the Draft Basic Proposal is a sweeping safeguard clause which states "Nothing in this Treaty shall derogate from existing obligations that Contracting Parties have to each other under any international, regional or bilateral treaties addressing copyright or related rights".

This language is NOT present in the revised consolidated text (SCCR/12/2) presented to the 12th SCCR in November 2004. This language first makes its appearance in the revised consolidated text (SCCR/12/2/ Rev.2) presented to WIPO Member States in 2005. In the explanatory comments, the Chair notes that this language is a "new formula" based on an alternative proposed by 3 Member States-Egypt, Singapore and the United States of America. The purported purpose of this Article is to ensure "that the new Instrument would not derogate from any existing minimum obligations under any other treaty".

Another safeguard clause, less ambitious in scope proposed by Argentina, the European Community and its Member States, Honduras, Japan, Kenya, Switzerland, Ukraine, and Uruguay merely referenced the Rome Convention in terms of derogation from obligations in contrast to the sweeping safeguard clause presented in Article 1.1 of the Basic Draft document. My emphasis on Article 1 is to merely illustrate how a "new formula" based on a proposal tabled by 3 WIPO Member States was incorporated into "clean draft text" and to raise the question as to why this "trumped" a proposal tabled by over 30 WIPO Member States. One hopes these opaque drafting methods were not used in Articles 2 to 29 of the Draft Basic Proposal.

Another example of this culling process is the Singapore proposal (which received support from India) which called for a term of protection for 20 years for broadcasters. This proposal was consigned to the Working Paper (Graveyard slot) in contrast to the proposal calling for a term of protection for 50 years.

Obligations regarding Technological Protection Measures and Rights Management Information enjoyed inclusion in the winner's circle despite strong objection from at least one Member State.

For Member States and public interest NGOs participating in the SCCR process, attention should be placed on the process of negotiations as well as the technical minutia. Thus, the general public interest clauses tabled by Brazil to protect access to knowledge, curb anti-competitive practices, and protect and promote cultural diversity consistent with the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the defense of competition language tabled by Chile can have the chance to ameliorate a disastrous Treaty.

Jukka Liedes

WHO on stockpiles of oseltamivir

2006-03-21T10:44:00.001+01:00

Tuesday, 21 March 2006
Thiru Balasubramaniam

According to WHO's pandemic influenza draft protocol for rapid response and containment (27 January 2006), the definition of a "global stockpile" is

a stockpile created to support containment, either directly or by replenishing other stockpiles that were used to support containment, anywhere in the world. Following donations by industry, WHO currently has a global stockpile containing 1.5 million treatment courses of oseltamivir. The stockpile will increase by an additional 1 million doses by end February 2006, and reach a total of 3 million treatment courses by May 2006.

This January 2006 report also notes that WHO's stockpile of oseltamivir

currently contains 1.5 million treatment courses (10 capsules per treatment packet). This supply will expand to 3 million treatment courses by May 2006. Most recently, the manufacturer has announced plans to augment the stockpile by an additional 2 million treatment courses. Three million treatment courses will be held in reserve for containment purposes; use of the additional two million treatment courses is flexible and under discussion. For reasons of security and logistic flexibility, one half of the supply is stored in Switzerland and one half in the USA. Depending on the region and the rapidity with which supplies can be mobilized, this stockpile may be used to directly support containment in a country or to replenish national or regional stockpiles that were used to support containment.

In light of the fact that half of WHO's stockpile of oseltamivir is held in the United States perhaps it may be of interest to recall U.S. Health Secretary Michael Leavitt's testimony to the Subcommittee on Health of the House Committee on Energy and Commerce on 8 November 2005 where he asserted that in the event of an avian flu pandemic every country would want to keep and use whatever stockpiles of oseltamivir it held within its borders and reminded the Subcommittee that the U.S. Government would do everything necessary to protect its citizens during a pandemic.

Dates set for Internet Governance Forum (IGF) in Athens

2006-03-14T16:42:00.000+01:00

Tuesday, 14 March 2006
Thiru Balasubramaniam

The dates of the first meeting of the Internet Governance Forum (IGF) have been set by the Greek government from 30 October 2006 to 2 November 2006. The first meeting of the IGF will be held in Athens. Logistical information for the conference will soon be posted on the the host country website.

During the open consultations on convening the IGF held in Geneva from 16-17 February 2006, Mr. Nitin Desai, the UN Secretary-General's Special Advisor asked to participants to reflect upon two questions:

Whether there is a need for a multistakeholder group to prepare for the meeting.

Which public policy issues the first meeting of the IGF should address.

Although the deadlines for submissions to the IGF Secretariat on the "need for a multistakeholder group to assist the the Secretary-General in convening the IGF, what the mandate of this group should be and how it should be formed" expired on 28 February 2006, close watchers of this process have indicated that the Secretariat may be still amenable to suggestions. After all, two governments have made submissions on this topic on 3 March 2006 beyond the official deadline. The contact email is: igf@unog.ch

The deadline for groups to submit their top three public policy issues to be discussed in Athens is 31 March 2006. The submission should give a short explanation detailing the reasoning behind the selection.

The following link shows a short synthesis of the top ten most frequently mentioned discussion issues compiled from the dicussions and submissions. It should be noted that development and capacity building were cited as over-arching goals of this process. According to the IGF Secretariat, the ten most cited topics so far include: (1) Spam, (2) Multilingualism, (3) Cybercrime, (4) Cybersecurity (5) Privacy and Data Protection, (6) Freedom of Expression and Human Rights, (7) International Interconnection Costs, (8) Bridging the Digital Divide: Access and Policies, (9) Bridging the Digital Divide: Financing, (10) Rules for e-commerce, e-business and consumer protection.

The following website shows the submissions made by governments, civil society and business groups during the Geneva consultations as well as more recent comments on the "need for a multistakeholder group to assist the Secretary-General in convening the IGF, what the mandate of this group should be and how it should be formed".

Considering the open process of the IGF thus far, civil society groups should avail themselves of the opportunity to participate in the IGF and make submissions to the IGF Secretariat by 31 March 2006 on their "top 3 list" of public policy issues the first session of the IGF in Athens should discuss.

WIPO Open Forum on the draft Substantative Patent Law Treaty (SPLT)

2006-02-28T18:28:00.000+01:00

Wednesday, 1 March 2006
Thiru Balasubramaniam
Morning Session of the WIPO Open Forum on the draft Substantative Patent Law Treaty (SPLT)
Background and Summary of Sir John Sulston's address

The WIPO General Assembly of 2005 mandated WIPO (WO/GA/32/13) to hold an informal open forum on

all issues that have been raised in the draft of the SPLT or that Member States wish to include in the draft SPLT. The forum will be of a duration of three days. The various issues will be discussed with contributions from speakers reflecting a balance of geographical representation and perspectives, and technical expertise.

As mentioned in my previous post the agenda is the result of a consultative process held between WIPO Member States and the WIPO Secretariat.

The three day meeting is thematically divided into 5 broad topics: Theme 1-Harmonization of Substantive Patent Law: Purpose, Approaches and Limits, Theme II-Subjects of Patent Law Proposed for Harmonization, Theme III-Patents as a Source of Information and Innovation, Transfer of Technology and Licensing Practices, Theme IV-New Technologies and their Specificities and Theme V-The Interface of the Patent System with Other Areas of Public Policy.

The morning commenced with an excellent overview by Sir John Sulston (Vice-Chair, Human Genetics Commission, London-Nobel Prize in Physiology or Medicine in 2002), entitled "International Patent Law Harmonization, Development and Policy Space for Flexibility". He briefly touched upon his background as a biochemist, a user of knowledge in research. His experience in the human genome project highlighted tensions between the public and private sectors "over whether the human genome sequence should be freely released".

Sir Sulston noted that while

[p]eople need a robust system for handling intellectual property, and world harmonisation of IP is extremely desirable. Removing diversity is good for the majority of those seeking patents, by simplifying the process and avoiding duplication in the work of patent offices, so IP professionals will rightly press the case to do so. But it may not be so good for the rest of us, the ultimate users of the results, and may not be good for all patent holders equally. Precisely because the world is diverse, we are not yet in a position to agree easily on the details of the ideal system. Solutions need to be effective overall, not just for the few. We need to seek balances between sometimes conflicting pressures: between developed and less developed countries, discovery and exploitation in science, private and public, free release and monopoly.

Sir Sulston cited two examples in the difficulties faced by countries with respect to the upward ratcheting of IP regimes. He noted the 1996 European database directive which had been demonstrated to be ineffective, and in some instances counterproductive in encouraging the European database industry. Despite the evidence however, the legislation has not been removed because of the commercial interests of the database industry.

He also noted the example of the opposition expressed by the US Council of Economic Advisers and the Office of Science and Technology to the TRIPS Agreement during the Uruguay Round negotiations. Sir Sulston highlighted that the patent system should exist in balance with other forms of innovation. He cautioned against simplistic causality when affirming the benefits of the patent system by showing parallelism between an increase in patent applications and increasing prosperity. He noted,

One can equally point to parallelisms between obesity and prosperity, or between global warming and prosperity. But nobody suggests that obesity or global warming are causes of prosperity - they are unwanted by-products. Undoubtedly, robust patents have an important part to play, but we should be cautious in giving them too much credit for industrial success. This is especially true in the context of world harmonisation. In general, the developing countries that have shown the fastest growth are those that retained relatively protected markets until they reached a position of strength. The same was, of course, the case for Europe and the US a century ago. Regrettably, harmonisation is a way for those who have already arrived at a prosperous situation to pull up the ladder and stop others joining them.

Sir Sulston noted that given the imperfections of the patent system, harmonisation should not be the first priority for WIPO Member States-especially developing countries. First more efforts are needed to implement TRIPS safeguards. He noted that harmonisation should be pursued gradually and piecemeal.

He welcomed two important themes underway at WIPO: (1) the Development Agenda and the (2) Chilean proposal to appraise the public domain. In this context he mentioned proposed instruments for handling intellectual property including (1) the General Public Licence of the Free Software Foundation, (2) CAMBIA's Biological Innovation for an Open Society (BIOS) open licences adapted for patent technologies in the life sciences, (3) Creative Commons, and (4) the WHO resolution submitted by Kenya and Brazil which "proposes better methods for handling IP in biomedical research and development".

Sir Sulston issued a caveat concerning WIPO's role in the discussion of complementary systems to IP. He cited US and EU efforts to negotiate bilateral agreements and free trade areas in lieu of the international trading system. He noted that the

irony is that these so-called free trade areas are a return to old systems of most favoured nations- and indeed imperialism. It's a disturbing development, and needs a collective response.....Harmonisation but not equalisation is desirable. We need a substantive IP system, but simply heading uncritically down a road of more and stronger exclusivity is wrong for many of us: wrong for science, wrong for many small businesses, wrong for reducing the poverty gap. Wrong indeed for our very survival - for injustice breeds discontent wherever it comes from.

WIPO PCDA discussions on way forward

2006-02-23T18:23:00.002+01:00

Thursday, 23 February 2006
Thiru Balasubramaniam

The afternoon session of the fourth day of discussions dealt mainly with structuring future discussions of the development agenda. The Chair (Ambassador Gauto Vielman of Paraguay) distributed a document entitled "Clusters of Proposals" from A to F listed vertically.

A. Technical Assistance and Capacity Building

B. Norm-Setting, Flexibilities, Public Policy and Public Domain

C. Technology Transfer, Information and Communication Technology (ICT) and Access to Knowledge

D. Assessments, Evaluation and Impact Studies

E. Institutional Matters including Mandate and Governance

F. Other Issues

Nearly one hour was devoted to whether to structure this list "horizontally" or "vertically". The Ambassador of Argentina proposed that this list be structured in horizontal clusters in a table or matrix format. This he suggested would be a better way to visually see the common threads binding the proposals. Different delegations could then identify which cluster or column they felt their proposals belonged to. This initiative was supported by Brazil, Pakistan, and Venezuela. Many other members including the United States noted that this process was time consuming and was not the most efficient way to proceed.

The delegate from Pakistan had an inimitable quote on these discussions,

We can't resist the temptation to recite this line while we are looking at your proposal; a dance is a vertical expression of a horizontal desire. It is somehow relevant to the discussion we are having here. The desire is horizontal because we want to have a common ground. We have received from you a vertical expression.

The Argentine idea for a table would visually indicate how much support different proposals would receive.

At the end of the day, the Chair called on Members to submit their respective proposals by 10 AM tomorrow and indicate under what headings they wanted their submissions to be included. The Secretariat will then compile the submissions and present a compilation by 2:30 PM. At the 3:30 PM the WIPO PCDA will resume and consider this compilation and the Chair's summary.

Discussions at WIPO PCDA on US proposal related to counterfeiting, piracy and enforcement

2006-02-23T13:10:00.000+01:00

Thursday, 23 February 2006
Thiru Balasubramaniam

Yesterday the United States of America presented its proposal on the elaboration of a WIPO Partnership Program. Point six of the US proposal dealt with the effect of counterfeiting and piracy on economic development.

The US proposal called for the WIPO Advisory Committee on Enforcement (ACE) to

discuss and analyze the relationship between the rates of counterfeiting and piracy of intellectual property and technology transfer, foreign direct investment and economic growth.

The US delegate asserted that there was growing evidence that weak IP regimes were a deterrent to inward investment, FDI and technology transfer. The US proposal called for the WIPO Secretariat to "assist in the collection of data on piracy rates".

Japan and Austria (on behalf of the EU) made rather anodyne remarks supporting studying the effect of counterfeiting and piracy on economic development.

Brazil responded point by point to the US proposal. As the hour was drawing late, Brazil continued its response this morning. Brazil noted the American delegate's mention of "endemic" piracy. The Brazilian delegate noted that piracy was a global problem and not just a problem endemic to developing countries. he noted that WIPO did not have the mandate to address corrupt practices of government or of enforcing IP; the Advisory Committee on Enforcement (ACE) was just an advisory body.

Brazil responded to Romania's intervention on Brazil creating a national committee to combat piracy in 2003 and thanked Romania for recognition that Brazil had credentials for enforcement.

At this point the Romanian Ambassador Doru Romulus Costea raised his placard in the air and made an intervention. He noted that

[w]hat Romania does in respect of enforcement is not in question here. Otherwise if we were to talk about what each and every country does, we would have produced a different statement and we would be here all day.

The Brazilian delegate responded

[w]e have credentials to raise the adequacy of the IP to development. We don't feel counterfeiting and piracy belong to this. However, another delegation brought up Brazil's national statements on piracy, so I feel obliged to resume my intervention. And I feel it is incumbent on me to respond on Brazil's efforts to combat piracy. As the Romanian delegate rightly, pointed out we do believe the ACE is an important body provided it functions within it's terms of reference. The fact that we have a development agenda does NOT mean we favor counterfeiting and piracy. I must say that it is strange to hear Romania cite Brazil's efforts on enforcement in support of his point about enforcement. One would normally expect that one would cite the experience of one's own country. Since the Romanian delegate cares so much about enforcement, perhaps the delegate could submit his candidacy for the ACE.

Clarification on WIPO discussions on the WHO R&D resolution

2006-02-22T16:13:00.000+01:00

Wednesday, 22 February 2006
Thiru Balasubramaniam

On the first day of the WIPO PCDA, the Chilean Ambassador noted current discussions on an a2k treaty and the WHO resolution on a global framework on essential health research and development as examples of complementary systems to and in intellectual property.

In my intervention on behalf the the Civil Society Coalition yesterday, I highlighted

recent events at the World Health Organization's Executive Board which recently submitted to the World Health Assembly, the highest decision-making body of the WHO, a draft resolution on a "Global Framework on Essential Health Research and Development". The resolution provides a process to consider a new global regime that is consistent with human rights and public health priorities. The proposed resolution recognizes the importance and relevance of public sector and open source methods of supporting and doing R&D, and the need to have appropriate balance between the public domain and intellectual property rights.

Dr. Eric Noehrenberg, Director, of International Trade and Market Policy at the International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) responded in his intervention in the following manner,

As a point of clarification regarding the WHO resolution mentioned by a previous NGO speaker, it should be noted that the resolution in question was NOT submitted by consensus to the World Health Assembly, contrary to normal procedure. Indeed, only Kenya and Brazil signed onto this resolution and several delegations expressed strong concerns about the usefulness of this exercies. The models of an "R&D treaty" or "guidelines" submitted to WHO are unworkable, ineffective, and bureaucratic.

It should be noted that the actual text of the WHO decision (EB117.R13) of 27 January states the following,

[t]he Executive Board, [h]aving considered current developments regarding access to medicines and the need to develop urgently new medicines and other health care technologies; [s]ubmits to the Fifty-ninth World Health Assembly for its consideration the following draft resolution.

Nowhere in this decision does it state that the resolution was "NOT submitted by consensus to the World Health Assembly, contrary to normal procedure" nor does it state that only "Kenya and Brazil" forwarded this draft resolution to the World Health Assembly. On the contrary, the WHO Executive Board submitted this proposal to the World Health Assembly by conensus, bracketing language where divergences occurred.

Day 2: Chile's presentation of its proposal

2006-02-22T12:36:00.000+01:00

Tuesday, 21 February 2006
Thiru Balasubramaniam

The morning session continued with general statements on the Development Agenda process.

The afternoon session resumed with a focused discussion of the Chilean proposal. Chile made a detailed presentation of its proposal. Chile elaborated on its three main points: (1) recognizing the value of the public domain, (2) the "importance of complementary systems to and in intellectual property" and (3) conducting a "study for assessing what are the appropriate levels of intellectual property, considering the particular situation in each country, specifically its degree of development and institutional capacity".

On the public domain, Chile stressed that its intentions were not about attributing a monetary value to the public domain but rather to recognize its inherent value to society. He noted that the benefits of a rich and vibrant public domain were obvious to the education, government and business sectors. For patent offices, the public domain could be used to see what prior art was available throughout the world.

The delegated reiterated that Chile's starting premise was that

nothing is created out of nothing. The greater the works in the public domain the greater the creation. We don't want to put fences around the public domain.

The delegate noted that patents and copyright laws could have a negative effect on the public. He reminded the committee that around a 100 years ago, various limits were put on the public domain through these laws. He remarked that while they may have been justified one by one, taken as a whole, they have reduced the public domain.

According to Chile,

[c]opyright was originally designed to protect author's rights, artists and performers. We are now discussing new rightholders that can have claims to the same work. The number of rights conferred on rightholders have increased. And we have increased the terms of protection of both copyright and patent.

Chile reminded Member States with respective to retrospective protection, there exists a presumption about the ownership of works under Article 18 of the Berne Convention. There are so-called "orphan works" Chile said that some industrialized country legislation dealt with this problem.

Chile noted a national initiative to digitalize all copyright works so they would be available when they move into the public domain.

With respect to its second proposal on complementary systems to and in intellectual property, Chile noted that WIPO should have a discussion on creative commons and free and open source software. Chile noted that while there could be difficulties in setting up a permanent forum to discuss these complementary systems, the delegate suggested that a time-limited electronic discussion forum or its inclusion as a standing agenda item in a WIPO Committee as a means for further consideration at WIPO.

With respect to its proposal on impact assessments on the effects of IP on development. Chile suggested country studies on specific issues such as patents and copyright, L&E, and alternative systems. The study could comprise a small selection of developing and developed countries on a voluntary basis. Chile indicated its willingness to participate in such a study.

A substantive debate followed Chile's presentation which I will blog on in the near future.

Here is a list of public interest NGO interventions in support of the Chilean proposal.

Civil Society Coalition (CSC)
IP Justice
Third World Network
3D

Thanks to Gwen Hinze (EFF) and Teresa Hackett (eIFL) for inputs.

Day 1 of WIPO PCDA meeting

2006-02-20T20:36:00.001+01:00

Monday, 20 February 2006
Thiru Balasubramaniam

The first meeting of the WIPO Provisional Committee for Proposals Related to a Development Agenda (PCDA) meets from 20 February to 24 February. The morning session commenced at 12:43 PM and broke up at 12:57 PM. The reason for the abbrievated morning session was intense pre-meeting negotiations on electing a Chair for the PCDA. One candidate favored by the Group B countries (mainly industrialized Members) was the Ambassador of Romania. The candidate favored by many developing countries was Ambassador Rigoberto Gauto Vielman. Finally, after much deliberation, the candidate from Romania withdrew from the race. When the morning session convened, Nigeria on behalf of the African Group formally nominated Ambassador Gauto (Paraguay) as Chair and the Ambassador of Kyrgyzstan as Vice-Chair. Thailand, on behalf of the Asian Group seconded the nominations; Ambassador Gauto and the Kyrgyz Ambassador were elected unanimously to their respective posts. Ambassador Gauto noted that he was
"[c]ommitted to working in a very open-minded way" He noted that the
PCDA would resume at 3PM with "presentation of new proposals put
forward, then invite substantive discussion of proposals". The importance placed to the Development Agenda discussions was evidenced by the presence of several Ambassadors (Argentina, Chile Morocco, Nigeria and Paraguay to name a few).

Most of the afternoon session was devoted to countries making general statements and introducing their respective proposals.

Austria, on behalf of the European Communities and its 25 Member States and the acceding states of Bulgaria and Romania, asserted that it shared the premise that development related issues could be integrated into WIPO within existing the WIPO Convention and 1974 agreement with United Nations, recognizing WIPO's mandate to facilitate development.

The Austrian delegate emphasized the need to make concrete proposals by concentrating on proposals that were "ripe for harvest". According to Austria, this would help engender trust and cooperation and would ensure that this resulted in an international IPR regime that increased encouragement for foreign direct investment, stimulates economic growth and provide benefits to all.

Thailand, on behalf of the Asian Group noted the importance of public policy objectives in the Millennium Development Goals, e.g. public health, biodiversity, access to medicines, and access to educational material. Thailand stressed that WIPO needed to ensure that its norm-setting activities were consistent with public policy objectives recognized by group. It noted its support for the mainstreaming of the development agenda into WIPO norm-setting activities

Nigeria, on behalf of the African Group, presented its proposal for the Development Agenda. Ambassador Joseph U Ayalogu stated that "[t]echnical assistance should be development-oriented and demand driven. With respect to transfer of technology, the African Group echoed the conclusions of the Report of the UK Commission in Intellectual Property Rights which asserted that

the critical issue in respect of IP is not whether it promotes trade or foreign investment, but how it helps or hinders developing countries gain access to technologies that are required for their development.

Ambassador Ayalogu stressed that the African Group was not against IP protection per se. However, he noted that the Group was of the opinion that any meaningful discussions of IP and development take into account the following:

1. There must be a clear and consistent rational for IP protection

2. There must be an assessment of the costs and benefits of IP protection.

3. IP protection must not be divorced from the aspirations not be divorced from the aspirations of developing and least developed countries for economic growth and development, the acquisition of technological know how, etc.

5. Public interest concerns such as access to knowledge, health and nutrition, agriculture and so forth must be protected.

Pakistan made an intervention on behalf of the Group 77 (G-77) and China. Ambassador Massood Khan noted that the G-77 and China were of the view that the "Development Agenda discussions in WIPO form[ed] an in important milestone". He noted that WIPO, as part of the UN family, had an obligation to prioritize the mainstreaming of development dimension into the core of its program and operational activities. Ambassador Khan reiterated the Doha Declaration adopted at the Second South Summit in 2005 which emphasized that

while developing countries are committed to undertaking their international obligations, these undertakings may impose high costs, and that given the differences in development and the ability of countries to assume obligations, it is imperative that identical obligations are not forced on unequal participants.

Ambassador Khan highlighted the IIM discussions last year which cited the need to make the "affordability and accessibility of essential products like pharmaceuticals, text books and educational software" as "primary examples of areas where such flexibilities need to be either created or made operable, with regard to the IP system."

Ambassador Dumont of Argentina made the intervention on behalf of the Friends of Development (FOD). As mentioned in the FOD proposal, the FOD identified 6 common threads among the 50 specific proposals presented since 2004. The FOD proposal noted this 6 common themes as a means of producing tangible outcomes and recommendations to the General Assembly in 2006. Among the common threads identified was how to

"facilitate access to knowledge generally around the world and
specifically in developing countries for example by means of a Treaty
on Access to Knowledge" given the [g]rowing importance of access to knowledge of protecting and promoting access to the cultural heritage and need to maintain robust public domain through exceptions and limitations.

The Chilean Ambassador outlined his delegation's proposal. He stressed that a public domain was an important source of creativity and a key factor for growth. He cautioned that the public domain could be unnecessarily affected through technological protection measures (TPMs). He warned of a global trend towards increasing exclusive rights and restricting material in public domain. In his elaboration of the importance of complementary systems to and in intellectual property the Chilean Ambassador noted current discussions on an a2k treaty and a treaty on medical research and development (being discussed at the WHO).

The United States made an elaboration on its proposal for a WIPO Partnership Program.

Please see Georg Greve's blog for additional insights.

Thanks to Gwen Hinze and Teresa Hackett for inputs

Conclusion of open consultations on Internet Governance Forum

2006-02-19T16:15:00.003+01:00

19 February 2006
Thiru Balasubramaniam

The open consultations on the Internet Governance Forum concluded on 17 February 2006. Here are the official transcripts of the second day of the morning and afternoon consultations.

Pakistan, on behalf of G-77 and China stated that the World Society on Information Society (WSIS)

belongs to the series of U.N. summits that focused on economic and social development issues.

The primary objective of the summit in all its aspects, including Internet governance, was to create, and I quote, a people-centered, inclusive, and development-oriented information society.

The group would like to reiterate that the Internet Governance Forum we intend to create must help realize this vision of a development-oriented information society.

Pakistan stressed the importance of having multi-stakeholder participation in the IGF from governments, civil society, and business from developing countries as well as international organizations.

According to the delegation of Pakistan, part of a development oriented approach to internet governance would be by "providing users with choice of different software models, including open source, free and proprietary software".

Pakistan called upon the chair to reconvene open consultations in a month to have more substantive deliberations.

The Chair noted there could be logistical problems in convening consultations in Geneva in a month as there were many other conflicting meetings.

Brazil supported Pakistan's call for an additional round open consultations. Brazil suggested early April as set of dates )after the ICANN GAC meeting in New Zealand at the end of March). Brazil's proposed a format for the IGF comprised of three bureaus, a government bureau, a private sector and a civil society bureau. Each bureau would have 15 representatives. The government bureau would have five regions with three representatives each.

Markus Kummer, Executive Coordinator of the Secretariat of the Working Group on Internet Governance, noted the possibilities of a "steering committee" or a "programme committee" as potential bodies to determine the agenda of the Athens Internet Governance Forum.

Pakistan (G-77 and China) noted that there was no agreement nor discussion within the G-77 yet of a "steering committee or a program committee". Pakistan requested to hold consultations in three to four weeks to prevent clashing with the human rights commission.

Australia echoed Singapore's views that the IGF start small and evolve as the IGF is proven. Australia highlighted the preference by many delegations for so called "horizontal" or "cross-cutting" issues rather than "vertical" issues. In the delegate's own words,

Concerns has been expressed that issues are being put forward as priorities for discussion in the IGF which are not cross-cutting enough or are too readily being consigned to silos. I'm not quite sure that we would agree that Spam, security, and cybercrime, for example, are not cross cutting. They seem to raise implications in a range of areas and to warrant responses from a range of areas and institutions. But I do not really want to ponder on the meaning of cross cutting. I would observe that many issues lend themselves to be tackled in a cross-cutting manner from a multidimensional perspective, and we consider that is what is important. In addition, while there is a general statement that there are many cross-cutting issues, paragraph 72 of the Tunis Agenda also identifies particular functions and themes for the IGF which may not always be easily reconciled with this idea of cross-cutting issues.

The representative from the Worldwide Web Consortium noted their involvement in the web accessibility initiative which helped to define technology for people with disabilities. The representative urged the IGF to present its outcomes, in what ever format they took, to be presented in "open, non-proprietary formats that were used on the web everywhere else like HTML".

William Drake suggested that the structure of the IGF be fairly decentralized with a small administrative unit along the lines of the Internet Engineering Task Force (IETF).

Chairman Desai concluded by stating that the IGF would be held either in October or November and the organizers would ensure that it would not conflict with major religious holidays. He indicated that under standard practice, the Greek government (the hosts of the IGF) would be asked to provide a chair for the Forum. The chair noted that the terms "program committee" and "steering committee" to draft the agenda of the Forum had caused confusion among certain delegations so for the time being the term used would be "multistakeholder group". The Chair noted that how this "multistakeholder group" would be constituted would need to be decided relatively quickly in ten days. Chairmain Desai encouraged participants to present their views directly to Markus Kummer who would then convey them to the Secretary-General. The Chair hoped to have a fully functioning "multistakeholder group" before the end of March. The Chair noted that "nothing could be ruled out" as a discussion them in Athens. He urged participants to present ideas for between three to five priority discussion themes to the IGF. He reiterated that the program committee not New York would set the Athen agenda.

Brazil offered to host the 2nd IGF in Rio de Janeiro in 2007.

The Chair reiterated that the IGF awaited comments on two key issues,

the constitution of the -- possible constitution of the management -- multistakeholder management group, whatever it finally is called, and possible themes. I'm suggesting three simply because excluding the opening, there will be three plenary days available. But if three happens to become five, I'm sure there are ways one can be accommodated on that.

So on these two issues, if within ten days you can communicate with Mr. Kummer or anybody here who feels they still would like to rethink -- many of you have already given your views on this, but those of you who feel they want to go back and think

On the first day, I raised the question as to whether the IGF could consider open document formats in the context of government procurement policies and a proposed treaty on access to knowledge which has been raised by the friends of development countries at the world intellectual property organization.

First day of consultations on Internet Governance Forum

2006-02-16T17:35:00.003+01:00

16 February 2006
Thiru Balasubramaniam
Morning session

Today in Geneva the UN is holding two days of open consultations on convening an Internet Governance Forum (IGF) which is mandated by the World Summit on the Information Society (WSIS). This mandate calls for the IGF to be a multi-stakeholder policy dialogue. The IGF is chaired by the Secretary-General's Special Advisor for WSIS, Mr. Nitin Desai. A live webcast of the proceedings can be viewed at:
http://streaming.polito.it/IGF-live.

Here is an official
transcript of the morning session.

According to the IGF website,

The aim of the consultations is to develop a common understanding among all stakeholders on the nature and character of the IGF. The meeting will address the IGF's scope of work and substantive priorities as well as aspects related to its structure and functioning. It will also discuss the convening of the inaugural meeting including agenda and programme.

(http://www.intgovforum.org/)

Tentative dates for the IGF have been recommended by representatives of the UN Secretary-General and the Greek government; they are 24-26 October 2006. A decision on the dates will be taken jointly by the Secretary-General and the Greek government in light of the Geneva open consultations of 16-17 2006.

The format of the first day was open to governments, inter-governmental organizations, civil society, businesses, academics and individuals. Unlike other UN meetings I have attended, there was no hierarchy in terms of the order of statements. The statements of governments, civil society, IGOs and others were all interspersed during the day.

The main buzz words of the day seemed to be "multi-stakeholder" and "multilingualism". However, it was not quite clear as to what different parties meant by these terms.

Both the EU (represented by Austria) and Brazil called for spam to be a discussion item at the Athens IGF.

Pakistan took the floor on behalf of the G-77 and China and called for development-oriented clarity to the discussions of internet governance.

Brazil noted that decision making internet public policy issues should be taken by world community at large and not by number of technical bodies or a single government.

They said that technical bodies were deciding upon public policy issues. They warned that this awkward situation could go on forever without causing serious trouble and as they had said before, things that cannot go on forever don't.

They wanted the IGF to be a locus for the global community at large to create the necessary international applicable legal framework for internet-related pubic policy issues.

Brazil mentioned cyber-security, cybercrime, spam, consumer protection, counterfeiting, and global public policies related to top related domain names as possible substantive topics to be discussed in the Athens meeting.

The chairman, Mr. Desai concluded the morning session on the follwoing note

Everyone accepts multi-stakeholder participation. What does this mean though? Should it be based on open consultations, however, that was a simple process. The IGF should meet around 3 days once a year. What type of structure is to be expected at Athens? Many have echoed that IGF should have a development orientation. Development country participation is important (not just govt-but CSOs as well). Can this space be a forum to discuss the digital divide? The development dimension of ICT should be there but it is much bigger-education, e-health-governance and many other dimensions. We should not load everything from Tunis process into IGF. What is that we are expecting to see in IGF? We need flexibility, shared understanding of first IGF to look like. IGF term is 5 years. My request; it's not our job to fix outcomes, it's the job of the IGF to do this. What we need to focus is how to structure the forum.

Here is a link to Georg Greve's blog of the discussions.

WIPO's open forum on the Draft Substantive Patent Law Treaty (SPLT)

2006-01-19T13:07:00.000+01:00

20 January 2006
Thiru Balasubramaniam

WIPO will hold an "Open Forum on the Draft Substantive Patent Law Treaty (SPLT) from 1-3 March 2006 at its headquarters in Geneva.

CPTech has obtained a copy of a provisional program dated 21 December 2005. It is understood that the program was a result of a consultative process held between WIPO Member States and the WIPO Secretariat last year. An official at WIPO confirmed to me yesterday that not all the speakers listed in the provisional program have accepted their invitations. WIPO is still in the process of contacting some of the speakers and should hopefully publish a new version of the provisional program with confirmed speakers on its website before the end of the week.

The names of countries that proposed speakers include Australia, Chile, China, Denmark, the Friends of Development (Argentina, Bolivia, Brazil, Cuba, the Dominican Republic, Ecuador, Egypt, France, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania and Venezuela), Germany, Italy, Japan, the Netherlands, Republic of Korea, Switzerland, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.

The three day meeting is thematically divided into 5 broad topics: Theme 1-Harmonization of Substantive Patent Law: Purpose, Approaches and Limits, Theme II-Subjects of Patent Law Proposed for Harmonization, Theme III-Patents as a Source of Information and Innovation, Transfer of Technology and Licensing Practices, Theme IV-New Technologies and their Specificities and Theme V-The Interface of the Patent System with Other Areas of Public Policy. Each of these 5 themes is divided into smaller sub-themes which will be discussed below.

Some names proposed by the Friends of Development (FOD) include:

Professor Joseph Stiglitz (Columbia University) to speak on International Patent Law Harmonization, Development and Policy Space for Flexibility in Theme I (co-proposed by Chile).

Mr. Peter Drahos (The Australian National University) to speak on Patent Law Harmonization and the Draft SPLT in Theme I.

Mr. Carlos Correa (University of Buenos Aires) to speak on Prior Art-related issues (definition of prior art, novelty and inventive step) in Theme II and to speak on Sufficiency of Disclosure (enabling disclosure, disclosure of prior art, best mode) in Theme II.

Mr. Joshua Sarnoff (American University) to speak on Disclosure of Origin of Genetic Resources, including Compliance with Prior Informed Consent and Benefit Sharing in Theme II.

Mr. Christopher Garrison (Consultant, Welcome Trust Research Team and the London School of Economics and Political Science) to speak on Exclusions from Patentability, Industrial Applicability and Technical Effect in Theme II and to speak on Patents and Public Health, including Second Use Patents in Theme V.

Mr. Sisule Musungu (South Centre) to speak on Exceptions to Patent Rights in Theme II.

Sir John Sulston (Former Director Wellcome Trust Sanger Institute) to speak on Biotechnological Inventions (Patenting of Genes and Life Forms, and the Impact of Patenting on Upstream Science) in Theme IV.

Rishab Ghosh (University of Maastricht) to speak on Software Patents in Theme IV.

Some names proposed by the US include:

Mr. Jonathan Zuck (Association for Competitive Technology) to Speak on International Patent Law Harmonization (The View of Small and Medium-sized Enterprises) in Theme I, to speak on Software Patents in Theme IV and to speak on the Scope of the Patent System and Alternative System and Alternative Models to Promote Innovation in Theme V. According to a certain expert,

Since 1998, Mr. Zuck has lobbied on behalf of Microsoft, one of his group's members, on issues ranging from fighting off anti-trust actions, to tax breaks, to promoting software patents in Europe.

Mr. Joseph Straus (Max Planck Institute for International Property) to speak on Grace Period in Theme II.

Mr. Benjamin Zycher (Pacific Research Institute) to speak on Disclosure of Origin of Genetic Resources, including Compliance with Prior Informed Consent and Benefit Sharing in Theme II.

Mr. Jeffery Hawley (Eastman Kodak Co.) to speak on to speak on Exclusions from Patentability, Industrial Applicability and Technical Effect in Theme II.

Mr. Jeffrey Kushan (Sidney, Austin, Brown and Wood) to speak on Biotechnological Inventions (Patenting of Genes and Life Forms, and the Impact of Patenting on Upstream Science) in Theme IV.

In addition to speakers specifically requested for by WIPO Member States other names appear on the program presumably added at the best of the WIPO Secretariat since no Member States are attached to their names.

Some of these speakers include:

Mr. Gerard Girour (European of Patent Office) to speak on Accessing the Technology Disclosed in Patent Data and Publications in Theme III.

David Martin (CEO of M-CAM) to speak on the Freedom to Operate (Patent Landscapes) in Theme III. His views on the patent establishment can be found here-
http://wiki.ffii.org/Martin041109En

Mr. Dominique Guellec (Organisation for Economic Co-operation and Development) to Speak on The Role of Patent Statistics in Theme III.

Mr. Rigo Wenning (World Wide Web Consortium) to speak on Patents and Standards in Theme IV.

Mr. Benoit Mueller (Business Software Alliance) to speak on Patents and Standards in Theme IV.

WIPO developments and upcoming meetings

2005-12-08T12:07:00.000+01:00

8 December 2005
Thiru Balasubramaniam

Today the WIPO Secretariat is holding "Consultations on the Open Forum on the Draft Substantive Patent Law Treaty" with Member States in an effort to vet names and topics for this open forum to be held from March 1-3, 2006. According to sources close to the discusssion, Benoît Müller, Director of Software Policy Europe, Business Software Alliance has been nominated to speak on inter-operability issues. David Martin, an expert in domestic and international technology transfer and in patent enforcement and issuance and the founding CEO of M-CAM has been proposed to speak on the patent landscape.

Here are some excerpts of a speech David Martin gave in November 2004 on real economic consequences of the non-accountability of the patent establishment.

"Some of you are familiar with what I talk about when I mean the ethernet plug. That wonderful little thing that actually looks like a phone plug, just a few extra more little spiky things on them. There currently are 683 patents in force covering... the ethernet plug. Not the use of it, the plug.

That means every time any of you actually plugs that thing into the wall, there's an outside chance that you're actually infringing when you even plug your computer into the ethernet plug, much less to a goddamn thing with your ethernet once you get it hooked up.

You actually don't have a place to start. You can't plug a computer in without infringing a series of patents on plugging your computer in...

Our patent systems have sovereign immunity from any economic consequence and until that reform happens, Ladies and Gentlemen, we're rearranging deck chairs on the Titanic."
(http://wiki.ffii.org/ Martin041109En)

Here are the dates associated with the WIPO Standing Committee on Patents.

SCP Open Forum: March 1 to 3, 2006
Informal session of the SCP: April 10 to 12, 2006
Formal session of the SCP (if any): July 3 to 7, 2006

WIPO Provisional Committee on Proposals Related to a WIPO Development Agenda
The dates for the Provisional Committee Meetings on Proposals Related to a WIPO Development Agenda (PCDA) have been set. The dates for the first session are from February 20 to 24, 2006. The dates for the second session are from June 26 to 30 2006. The agenda for the first session of the WIPO PCDA can bee found at this site:
(http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=53452).

WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore
The next meeting of the WIPO Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore will take place on April 24, 2006 to April 28, 2006.

WIPO Standing Committee on Copyright and Related Rights (SCCR)
The next meeting of the WIPO SCCR will meet from May 1, 2006 to May 5, 2006.

WIPO Advisory Committee on Enforcement (ACE)
The Third Session of the WIPO Advisory Committee on Enforcement (ACE) meets from May 15, 2006 to May 17, 2006.

WTO TRIPS Council meeting-Bad deal expected

2005-12-06T11:58:00.000+01:00

Tuesday, 6 December 2005
Thiru Balasubramaniam

The WTO Council for TRIPS will meet today in Geneva at 3 PM. It is expected that WTO Members agree to "forward a proposal to the General Council containing the draft Decision on the Amendment and the text of the Statement to be read out" by the Chair of the General Council (Amina Mohammed) prior to the adoption of the Decision by the General Council.

Two significant developments demonstrating opposition to this initiative have emerged in the last two days. On Monday 5 December 2005, three Congressmen in the U.S. House of Representatives (Waxman, Brown and Allen) wrote a letter to USTR Ambassador Portman seeking immediate clarification on the "U.S. Government’s stance on access to generic medications at the forthcoming World Trade Organization Ministerial in Hong Kong." (http://lists.essential.org/pipermail/ip-health/2005-December/008776.html)

They noted that,

"[b]ecause of the potential threats to public health preparedness in developing countries and at home, we request clarification of the U.S. Government’s position on compulsory licensing for importation. Specifically, we would like to know why the U.S. reportedly wishes to make permanent a system that has been criticized as overly burdensome and has not yet been shown to be effective. In addition, we request an explanation of why the United States should foreclose the possibility of using the importation mechanism. We would like to know if it is the belief of the U.S. Trade Representative that the United States will be able to “opt back in” to the compulsory licensing for importation system if public health requires. If yes, we request a detailed explanation of the procedures that would have to be employed to permit the United States to do so."

The second development was that on Monday, 5 December 2005, 31 NGOs including Oxfam, Action Aid, Christian Aid, Health GAP, CPTech, Health Action International (Africa and Asia Pacific), Ecumenical Advocacy Alliance, Pharmaciens Sans Frontieres Comite International, Medecins sans Frontieres Access to Essential Medicines Campaign, Act Up Paris, Third World Network and scores of treatment access groups issued a public statement urging WTO delegates to reject a bad deal on medicines. (http://www.cptech.org/ip/wto/p6/ngos12032005.html)

The current set of documents that WTO Members will use to facilitate the adoption of a "permanent solution" amending Article 31 of the TRIPS Agreement include: (1) DRAFT ARTICLE 31BIS, (2) DRAFT ANNEX TO THE TRIPS AGREEMENT, (3) DRAFT APPENDIX TO THE ANNEX OF THE TRIPS AGREEMENT, (4) CHAIRMAN'S STATEMENT, (5) IMPLEMENTATION OF PARAGRAPH 11 OF THE GENERAL COUNCIL DECISION OF 30 AUGUST 2005 ON THE IMPLEMENTATION OF PARAGRAPH 6 OF THE DOHA DECLARATION ON THE TRIPS AGREEMENT AND PUBLIC HEALTH, (6) AMENDMENT OF THE TRIPS AGREEMENT, (7) ATTACHEMENT - PROTOCOL AMENDING THE TRIPS AGREEMENT and (8) CHOREOGRAPHY FOR ADOPTION OF THE DECISION ON THE AMENDMENT.

For an earlier version of Draft Article 31BIS and the Draft Annex to the TRIPS Agreement, please see: (http://lists.essential.org/pipermail/ip-health/2005-December/008757.html)

One significant change in the draft annex to the TRIPS Agreement is that the European Communities (EC) have made a change in footnote 3 which lists Members that will not use the system as importing Members. Basically all names of EC members have been deleted and replaced with "European Communities" (in brackets). This change although seemingly minor would have the effect of making the "opt-out" decision apply to the 10 new Member States of the European Union and it would seem to apply to future accession states such as Bulgaria (GNI per capita of $2740) and Romania (GNI per capita of $2920).

For an unofficial version of the choreography document please see:
http://lists.essential.org/pipermail/ip-health/2005-December/008774.html

Step 3 of the choreography document states,

"Representatives of the 11 partial opt-out Members would then make statements in the General regarding their intention to use the system as an importer only in situations of national emergency or other circumstances of extreme urgency. If they do not make such a statement, it would be expected that they would have sent a letter in advance to this effect."

Furthermore, this Choreography document would appear to prejudice any implications the intervention delivered by the Philippines (IP/C/M/41) at the TRIPS Council on 28 August 2003 where the Philippines expressed a broader understanding of the 30 August Decision than the narrow restrictive Chair's text. By accepting the current "Choreography" document as is, WTO Members would prejudice the 28 August 2003 intervention of the Philippines which greatly mitigated the restrictive scope of the Chair's Statement.

Status of TRIPS and Public Health negotiations

2005-12-02T16:47:00.000+01:00

2 December 2005

The WTO General Council is holding informal consultations on TRIPS and public health on proposals to amend the TRIPS Agreement to permit the export of medicines produced under a compulsory licence to countries with insufficient or no manufacturing capacity. Currently negotiations have centered on a draft text presented by General Council Chair Ambassador Amina Mohammed of Kenya.

(http://lists.essential.org/pipermail/ip-health/2005-December/008757.html)

This draft text contains the entire August Decision barring the preamble and paragraph 11 of the Decision which contained the mandate to find a permanent solution. In the run-up to the Hong Kong Ministerial the United States has made clear that any permanent solution amending Article 31 of the TRIPS Agreement should contain a clear reference to the text of Chairman Carlos Pérez del Castillo's statement of 30 August 2003. Ambassador Castillo issued this statement to "comfort those who feared might be abused and undermine patent protection". The Chair's statement added more red tape to a deal already abounding in red tape.

It is understood now that the United States has dropped its insistence to a written reference to Charman Castillo's statement in a permanent solution to Article 31 of the TRIPS Agreement. In return for this "concession", it has come to our attention that the Chair's statement will be read out orally at the time of adoption of a permanent solution. The grim prediction from trade diplomats is that a deal based on Chair Amina Mohammed's draft text for a permanent solution amending Article 31 of the TRIPS Agreement will be reached this weekend. The feeling one gets is watching a train wreck in slow motion and feeling powerless to stop it.

According to the definition of an eligible importing Member provided in this draft text, "some Members will not use the system as importing Members". Footnote 3 lists these 23 Members which include: Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Portugal, Spain Sweden, Switzerland, the United Kingdom and the United States. There is controversy and ambiguity as to whether any of these 23 Members can opt back in.

In the European Communities non-paper circulated earlier, the European Communities did not specify their individual Member States opting out but rather listed the entire European Union as opting out.

This issue is addressed however in part by Chairman Castillo's statement which named 10 WTO Members which since have acceded to the European Union. However, it is still unclear whether the European Union will insist on its 10 new accession states as opting out of the solution.

As the recent avian flu and Tamiflu debate has shown, this policy is clearly misguided. The permanent solution will certainly not engender efforts to employ economies of scale.

Public health and development organizations have expressed serious concerns about locking Members into a permanent solution that has yet to work in practice. If a deal is concluded based on the text of Chair Amina Mohammed's proposal, one has to question whether WTO Members are serious about implementing the Doha Declaration's exhortation that TRIPS "can and should be interpreted and implemented in a manner supportive of WTO members' right to protect public health and, in particular, to promote access to medicines for all". One wonders why WTO Members are so enthusiastic to adopt a solution endorsed by Big Pharma and opposed by virtually every public health group working on this issue.