Paper developed by the South Centre’s Innovation and Access to Knowledge Programme as part of the institutional partnership between Centre for Technology and Society (CTS) of Fundação Getúlio Vargas School of Law and South Centre, an intergovernmental organisation of developing countries with its headquarters in Geneva.

Post by Viviana Munoz, Ermias T. Biadgleng, Marcia Aribela, Caroline Ngome Eneme, Marumo L. Nkomo and Sisule F. Musungu (South Centre, Innovation and Access to Knowledge Programme).

Introduction

The 2006 World Intellectual Property Organization (WIPO) Assemblies took place from 25 September to 3 October 2006. At the session, Member States took decisions related to a wide range of issues, including major substantive and political ones, which have a direct impact on the ability of developing countries to protect the public interest and access, generate and use knowledge and technologies. From a development perspective, the main issues on which the WIPO General Assemblies took decisions were the following:

(a)The continuation of the discussion on the establishment of a Development Agenda for WIPO;

(b)The WIPO work plan on patent law issues and the Draft Substantive Patent Law Treaty (SPLT);

(c)The proposed Diplomatic Conference for a WIPO Treaty on the Protection of Broadcasting Organizations; and

(d)The work of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Other significant issues discussed at the WIPO General Assemblies included: the work of the Advisory Committee on Enforcement (ACE); the Protection of Audiovisual Performances; the Programme Performance Report for the 2004 – 2005 period, and the WIPO programme implementation during the first half of 2006; issues related to the strengthening of the role of Member States in WIPO governance and oversight, including the design, control and management of the WIPO programme and budget; the conclusion of the Singapore Treaty on the Law of Trademarks (Singapore Treaty), in March 2006; and the approval of WIPO agreements with other intergovernmental organisations.

This post presents a summary and non-exhaustive analysis of the decisions of the 2006 WIPO General Assemblies on the four key issues and their implications for developing countries and other stakeholders in 2007 and beyond.

The Discussions on Establishing a WIPO Development Agenda

Two years have passed since Member States of WIPO embarked on a process to establish a Development Agenda for WIPO, initiated by 15 developing countries that make-up the Group of Friends of Development (Argentina, Bolivia, Brazil, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, Uruguay and Venezuela). From a development perspective, the process towards establishing a Development Agenda for WIPO is perhaps the most important one ever initiated in WIPO by developing countries.

The proposals as presented by the Friends of Development encapsulate many of the concerns that had been voiced for a long time by developing countries, academics, experts and civil society organizations in relation to the activities of WIPO and the role of the organization as a United Nations (UN) agency. These include, for example, concerns that WIPO’s work is not in line with that of other UN organisations and agencies, including that its technical cooperation and norm-setting activities do not fully take into account the different levels of development of countries, the need to protect the public domain, and that flexibilities in existing treaties are not sufficiently emphasised in technical assistance. The Friends of Development did not only raise these and other concerns, but also made pro-active and detailed proposals on how WIPO may transform its structure and governance as well as its programmes to be more development-friendly and aligned with the requirements of the Millennium Development Goals (MDGs). Other Member States such as the African Group, the United States, the United Kingdom (UK), Colombia, Mexico and a group of Arab countries have also made useful and specific proposals for a WIPO Development Agenda. There are now a total 111 separate proposals. Although there have been substantive discussions on many of the proposals, in-depth analysis is pending and no proposal has been agreed to or discarded.

The WIPO General Assembly at its 2006 session was faced with the crucial task of giving new direction and impetus to the process, given that the Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), a committee established under the authority of the General Assembly to discuss the various proposals on the establishment of a development agenda for WIPO, failed to reach consensus on the way forward. There was overall support for the process to continue, following agreement that the issues related to the establishment of a WIPO Development Agenda are of importance to all Members. The challenge, however, was the process for continuing the discussions. The main points of divergence on how to proceed related to: whether the PCDA mandate should be renewed, or if a permanent committee should be set up to continue discussions on the 111 proposals; the mandate and time period for the renewed PCDA, if so agreed; and the method for organizing the discussions on the 111 proposals to arrive at concrete results. During the General Assembly meeting, many different ideas were presented by Member States on the precise methodology for moving forward.

The final decision adopted provides both opportunities and challenges especially for the Group of Friends of Development and other developing countries interested in a WIPO that is better focussed on their development needs. The decision, among others, provided that: The mandate of the PCDA would be renewed for another period of one year with two 5-day sessions during the year organised in a manner that would allow for structured in-depth discussions on all 111 proposals made so far. The first session would address a first set of proposals contained in Annex A of the decision and the second the remainder of the proposals.

As done during the sessions of the PCDA in 2006, WIPO will provide financing for the participation of representatives from developing countries, including LDCs, as well as from countries with economies in transition, to attend the meetings of the PCDA. In order to facilitate the task and streamline the process for detailed examination of all proposals in an inclusive manner, the PCDA should undertake an exercise: to narrow down the proposals, in order to ensure that there is no repetition or duplication; to separate the proposals, which are actionable, from those which are declarations of general principles and objectives; and to note those proposals, which relate to existing activities in WIPO and those which do not. The Chair of the General Assembly would, in consultation with Member States, produce initial working documents.

The PCDA will report to the 2007 General Assembly, with recommendations for action on the agreed proposals, and on a framework for continuing to address, and where possible to move forward, on the other proposals following the 2007 General Assembly.

The opportunity is that there will continue to be a dedicated forum and space for developing countries and other stakeholders including civil society groups to discuss how to mainstream the development dimension into all WIPO activities and programmes and to ensure that the organisations governance structure is one that is responsive to changing times and to the needs of developing countries. It is hoped that better structured discussion based on initial documents prepared by the Chair of the General Assembly would produce better results than before. However, many challenges remain.

First, given that the mandate of the PCDA was renewed for only one year, and only two sessions of the PCDA will be held before the General Assembly session in 2007, taking into account the working methods of WIPO committees, arriving at consensus or agreement on the more important, and hence, the more difficult issues may prove elusive. If concrete results are not realised a lot of political capital will have to be expended again at 2007 Assemblies just to keep the discussion going. Second, because of the separation of proposals into two different sets, it is likely that Members would not want to make concessions until they know what happens to the second set of issues which may be considered more important. This is logical in any negotiations and especially in WIPO with recent history in mind. This means that, except with very visionary leadership at the PCDA, it is inevitable that the deal with have to be reached only at the 2007 General Assemblies.

Third, there is so far no clarity as to what success for the development agenda will mean. To some it is short-term gains. To others it is a question of long-term transformation of WIPO both in terms of structures and processes as well as in terms of organisational culture. From the latter perspective, a lot of progress has already been achieved and its worth spending as much time as is necessary to move forward. From the former perspective the faster we close the issue the better and so some quick gains should be good enough. The test will be which perspective developing countries take. Finally, is the continued view among developed countries that the Development Agenda is against their interests and the seeming efforts to contain the proponents as revealed by an Intellectual Property Watch (IP-Watch) exclusive story on the discussions in Group B (developed countries) on how to deal with the development agenda (http://www.ip-watch.org/weblog/index.php?p=449&res=1280&print=0). In these circumstances there remains a significant trust deficit.

The Future of the Draft Substantive Patent Law Treaty (SPLT)

Discussions concerning the Draft Substantive Patent Law Treaty (SPLT), and more broadly, on patent law issues, have come to a stand-still in WIPO. This is largely a result of the growing concerns regarding the potential economic and social impacts of the proposed international binding standards in fundamental areas of patent law. A turning point in the discussion took place at the 2005 session of the WIPO General Assembly, that decided in respect of a work plan for the Standing Committee on the Law of Patents (SCP) and the discussions on the SPLT, that an informal open forum would be held in Geneva in the first quarter of 2006 on all issues that have been raised in the draft SPLT, or that Member States wish to include in the draft SPLT. The informal forum, which was followed by an informal session of the Committee, was intended to provide an opportunity to begin sorting out the impasse.

While the Open Forum was an important event that helped create greater understanding on a number of issues and fostered fruitful exchanges among an array of stakeholders, the informal session of the SCP, meant to take forward the discussions started in the open forum, was unable to agree on a work programme for the SCP. Member States were unable to break the deadlock between two different positions; on the one hand, developed countries together with some of the economies in transition wishing to join the European Union (EU) or those that are members of the European Patent Organization (EPO), commonly called Group B+ insistence that the SCP should have a limited work plan based on a “reduced package” composed of four issues identified by them (also known as SPLT-light) and, on the other hand, most developing countries which have argued that their concerns must also be part of any package and should be discussed on an equal footing with Group B+’s four issues.

It is in this context that the WIPO General Assembly at its 2006 session had to address the issue. After lengthy discussions and informal consultations little progress was achieved in terms of narrowing the differences. As a result, the SCP will be in virtual suspension in 2007 as Members seek to find a way forward based on the decision of the General Assembly that: delegations may submit, by December 2006, proposals for the work programme of the SCP including proposals on ways forward or approaches; the Chair of the General Assembly will conduct informal consultations in the first half of 2007 with the aim of discussing the proposals and recommending a work plan for the SCP to the General Assembly in September 2007; and the General Assembly in 2007 will consider the results of the consultations with a view to establishing a work plan for the SCP for 2008 and 2009.

Parallel to the SCP process, two other processes related to the SPLT and the general WIPO work on patent law issues are currently underway. These two processes will have direct or indirect implications for the discussions on the future of the SCP work plan and should therefore be kept in mind. The first is the process by Group B+ to continue discussions on the four issues outside of WIPO. The aim of the initiative is to move the negotiations for a SPLT outside of WIPO, if the process in WIPO does not move forward in accordance with Group B+’s expectations. Developing countries need to watch developments in this process but should resist pressure to agree to the terms of the discussion on the SPLT that do not include their interests.

While it is preferable to have a multilateral discussion on these issues it can not be that such multilateral discussions are predicated on a “what we want or nothing” attitude that Group B+ has taken. Indeed, one lesson to learn here is that time might have come for developing countries to seriously consider shaping the international processes by having development-oriented South-South IP Agreements which would provide a template for international discussions. Such Agreements, which could take the form of soft or hard law, could be considered regionally or cross-regionally. Whether the idea of South-South development-oriented IP agreements is pursued or not, however, consideration will need to be given to developing countries finding a forum where they can shape their positions beyond mere coordination.

The second important process is the series, started in 2006, of WIPO patent colloquia on various patent-related issues some of which have been previously proposed for discussion by developing countries and civil society groups. The discussions, provided that the colloquia offer a true multistakeholder platform to discuss these key issues outside of negotiations, should obviously be welcomed. In the context of the future work plan of the SCP these discussions are important because they are likely to shape the thinking on these issues in 2007 as informal consultations continue. The discussion on the issue offer an opportunity to shift the discussion in WIPO from a narrow focus on the SPLT to a larger set of key patent-related issues that are important not only to public interest groups but also to governments and industry as the previous colloquia discussions have demonstrated. However, the colloquia should not be seen as an alternative forum to discuss those issues raised by developing countries and civil society while the SCP is reserved as the forum for discussing the SPLT-light.

The Proposed WIPO Treaty on the Protection of Broadcasting and Cablecasting organisations

One of the most important and contentious issues for WIPO Member States during the General Assembly at its 2006 session related to whether, and under what conditions, to convene a diplomatic conference to negotiate a new instrument on the protection of broadcasting organizations, including cablecasting organizations. At the last session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) in September 2006, there was a clear lack of consensus among Member States both on how to proceed and on the substance of a possible new instrument on the protection of broadcasting organisations.

The lack of consensus was again evident in the discussion during the WIPO General Assembly, a clear sign that despite having discussed the issue for over 8 years, very little in-depth analysis and substantive discussions have taken place in relation to the possible new instrument. The European Communities (EC), Russia, Mexico and Japan were the main countries expressing support for a decision by the General Assembly to accept the full recommendation of the SCCR. Traditional broadcasting organisations in the EC have long been lobbying their governments for the conclusion of a treaty that would create new rights and additional protection for their signals and broadcasts, in addition to those they currently enjoy under the Brussels Satellite Convention, the Rome Convention and the TRIPS Agreement.

On the other hand, the United States and other developed countries, including Canada as well as other countries, opposed the scheduling of a Diplomatic Conference for the date recommended by the SCCR, noting that there was a clear lack of consensus among countries on many issues, including the scope of the proposed instrument. The United States government has, over the past year, been subject to increased internal pressure from civil society and business stakeholders, including internet service providers (ISP) and podcasters, to oppose the proposed treaty. Among other reasons, these stakeholders view the proposed instruments as unnecessary and potentially harmful particularly the proposals to grant broadcasting organisations exclusive rights that would extend beyond those required by the Rome Convention. The United States is also concerned with some of the alternative provisions concerning competition policy, protection of cultural diversity and specific limitations and exceptions that have been submitted by developing countries and are currently included in the Revised Draft Basic Proposal.

Many developing countries, including Brazil, India, the African group, among others, expressed reservation concerning the convening of a diplomatic conference since further analysis and impact assessments were required and there was still no agreement on the objectives, scope, and object of protection of the proposed instrument.

Clearly a decision to convene a Diplomatic Conference requires careful consideration, especially by developing countries given the central role that broadcasting plays in the diffusion, transmission and absorption of knowledge in these countries’ social and economic development. Developing countries need broadcasting services to remain accessible and affordable to all citizens, and to follow the values and objectives of that underpin the media system, including freedom of expression, access to information, media pluralism and cultural diversity. For developing countries, the most unfavourable outcome would not be a failed Diplomatic Conference, but an unbalanced treaty that may lead to unintended consequences, including possible restrictions on the flow of information, access to knowledge, freedom of expression and cultural diversity; unnecessary costs for consumers and exclusion of the poor from the social benefits of broadcasting; stifling of competition and technological innovation; the stalling of creative activity; and prejudicing the rights of copyright owners and other related right holders.

Due to persisting divergences the General Assembly decided to convene a diplomatic conference subject to certain conditions. Among others it was decided: To approve the convening of the Diplomatic Conference on the condition that two special sessions of the SCCR 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. 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. The scope of the treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense. That the Revised Draft Basic Proposal (document SSCR/15/2) will constitute the Basic Proposal with the understanding that all Member States may make proposals at the Diplomatic Conference.

The decision of the General Assembly made important modifications to the recommendations submitted to it by the SCCR. Primarily, it was agreed that the Diplomatic Conference cannot take place unless agreement is achieved, based on a signal-based approach, on the objectives, specific scope and object of protection of the proposed treaty on the protection of broadcasting organizations. This reflects the position of most Member States that the Revised Draft Basic Proposal, document SCCR/15/2, while constituting a good basis for continued discussions, does not constitute a sufficient basis to move towards a Diplomatic Conference.

The main challenge for Members now will be to seek to build consensus on the main aspects of the proposed treaty to ensure that the new protection that may be granted to broadcasting organizations is not overly broad and that such protection, if necessary, does not give rights to organizations which do not necessarily require such protection. The participation of civil society organisations and other stakeholders, including industry, in the upcoming SCCR meetings will be important to present evidence of the problems with the proposed approach and the potential negative effects of granting overbroad protection or exclusive rights to broadcasting and/or cablecasting organizations. It is quite clear that not even the sophisticated developed countries know what the possible implications of the treaty are and who will benefit.

Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore

For almost eight (8) years now, the relationship between intellectual property rights and the use, conservation and appropriation of genetic resources, traditional knowledge and folklore has been the subject of important discussion at WIPO. Related discussions have also continued in other intergovernmental organisations, including at the Convention of Biological Diversity Conference of the Parties (CBD - COP) and the World Trade Organisation (WTO) as well as other WIPO Committees and bodies such as the SCP and the Working Group on the Reform of the Patent Cooperation Treaty.

Since the creation of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) in 2001, the participation of Member States, civil society organisations, indigenous groups and other actors has been growing exponentially. While the IGC has provided a space for a number of stakeholders to meet and discuss, and a large number of documents, which have helped to increase the understanding of the issues, have been produced, progress has been slow. One of the reasons for the slow progress seems to be the complexity of the issues and large divergences of views in respect to the role that the intellectual property system may play in relation to the protection and appropriation of genetic resources, traditional knowledge and folklore. Another reason could be that some developed countries have an interest in slow progress so as to stall progress on this issue in other intergovernmental organisations, particularly WTO, as well as other WIPO Committees such as the SCP. These developed countries have argued that since the discussions are taking place in the IGC, parallel discussions should not proceed elsewhere. The mandate of the IGC currently extends until the year 2007.

The priority for developing countries continues to be the advancement of the discussions in all related fora. Given that the IGC at its last session held from 24 – 28 April 2006 only forwarded to the General Assembly a report of its activities, no decisions were expected to be taken by the 2006 General Assembly. However, the General Assembly can provide guidance to the work of any Committee, including the IGC. In this regard, during the General Assembly discussions developing countries highlighted the need to accelerate the work of the Committee to generate tangible results that excludes no outcome, including the possible development of an international instrument or instruments on the protection of traditional knowledge and traditional cultural expressions, as well as mechanisms to prevent the misappropriation of genetic resources. Several developing countries also asked the General Assembly to provide clear directions to the IGC to accelerate and finalize its work before the expiry of its current mandate in 2007.

Conclusion

The various decisions of the WIPO General Assembly at the 2006 session have set the stage for 2007. The various key decisions provided important opportunities for developing countries to bring their concerns to, and seek solution at WIPO. With the growing importance of discussion on IP and the socio-economic impact of the current international standards and rules these opportunities should be fully utilised. At the same time, however, significant challenges still remain for these countries. Clearly articulating their concerns and generating evidence for workable solutions, committing the necessary political, material and intellectual capital, coordinating joint positions and being able to set the agenda at WIPO and other related forums are some of the key problems and challenges. Exploiting the opportunities offered by the decisions of the 2006 WIPO General Assembly decisions will therefore also mean addressing these challenges.