[DMCA-Activists] IIM 2 Day 3: WIPO + Development Agenda

[Seth Johnson]

-------- Original Message --------
Subject: [A2k] Blogging WIPO and the Development Agenda, Second
IIM (Day 3)
Date: Mon, 27 Jun 2005 15:21:29 +0200
From: Thiru Balasubramaniam <address@hidden>
To: address@hidden, address@hidden

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


http://www.eff.org/deeplinks/archives/003744.php


    WIPO: Trying to Bury the Development Agenda


    June 27, 2005

The second meeting on the WIPO Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/> is now finished, and the
opponents of reform have made their strategy clear: tie-up the
meeting in procedural posturing to forestall substantive debate
on the real issues. Even as the Friends of Development
<http://www.wipo.org/edocs/mdocs/mdocs/en/iim_1/iim_1_4.pdf>
tried to discuss unassailable reforms like an ethics code for
WIPO, the proceedings kept getting sidetracked by countries that
wanted to cut off debate.

[We've got deeper analysis and the whole day's notes after the
jump.]

The United Kingdom - along with the U.S., Canada, Australia,
Japan, Switzerland, and other wealthy OECD
<http://www.oecd.org/home/0,2987,en_2649_201185_1_1_1_1_1,00.html>
countries known at WIPO as "Group B" – responded to each attempt
to debate substantive issues by stating that discussion should
take place in another committee: the Permanent Committee for
Cooperation for Development Related to Intellectual Property
(PCIPD). If this sounds familiar, it’s because they made the same
point at the first Development Agenda meeting in April. The UK
recommended this in its April proposal, and just prior to this
meeting, submitted a new version of its proposal
<http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=45790>
for the “reinvigoration” of the moribund PCIPD. The US also made
the same pitch in its opening statement on day 1 of the first
meeting back on April 11
<http://www.eff.org/deeplinks/archives/003509.php>. The PCIPD
includes “Development” in its name, but that’s not the whole
story. As the Brazilian delegate noted, moving discussion to the
PCIPD would run the risk of burying the Development Agenda. It
“would effectively be a garbage can for development concerns”
because PCIPD is a “less hierarchically significant committee”
than the current meeting.

The PCIPD reports to the WIPO Conference, a body that the WIPO
General Assembly voted to disband in 2002. Before April, it had
not met for two years. It’s previously been an advisory-only
body, focused on technical assistance – only one part of the FoD
reform proposals. Even if the PCIPD could be redesigned in the
future to handle the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/> and given the power to
implement its recommendations, it would mean more unnecessary
procedural hurdles before reforms could even be discussed. This
strategy is particularly odious because it is being raised in a
special, plenary-level gathering that was convened and
specifically tasked with considering proposals for WIPO reform,
and reporting its recommendations to the full General Assembly in
September 2005. The mandate of the IIM is so clear that, after
six days of meeting with very little substantive debate, it's
hard not to question the motivations behind the UK and Group B
proposal. Why wouldn’t any observer regard this as a cynical ploy
to stifle change?

In response to the perception that their proposal was "passing
the buck," the UK delegation said, "It's more like passing the
baton in a relay race. It doesn't matter who has the baton as
long as we are moving forward." But races are run on a track,
where progress can be measured and the finish line is obvious.
The opponents of the Development Agenda seem intent on running
WIPO reform into the ground.

We'll be at the next and final IIM in July with more updates and
analysis.

Ren Bucholz

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

[JUMP]

Blogging WIPO and the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/>, Round 2
The Second IIM, June 20-22: Day 3

Notes by:
Ren Bucholz, ren at eff.org, Electronic Frontier Foundation [RB]
Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on
Technology
[TB]

[NOTE: This is not an official transcript. Any errors and
ommissions are regretted.]

-=-=-=-=-
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-=-=-=-=-

10:45 A.M.

~ Chair: Opening remarks imploring delegates to proceed
efficiently, to speak only once if possible, and to respond to
another country only if totally necessary. Last half hour before
lunch will be dedicated to IGOs and NGOs.

~ Bahrain: Yesterday, we asked for more time to make our proposal
more interactive. We'll hold off on discussing it until the
proper time.

~ Chair: We'll first talk about 13 - indicators and benchmarks
for the evaluation of WIPO technical assistance - then 11 and 15

~ Argentina: 13 should be seen as parts of 11 and 12, since all
three comprise a section. Proceeds to present on items 11-13,
summarizing each.

~ Switzerland: On 10 & 4, and also on 11-13, the guidelines for
setting up such endeavors could be discussed in the PCIPD.

~ Canada: This response is to item 13. Agrees in principle with
FoD. That being said, who would be responsible for this work? The
Secretariat?

~ US: Pursuant to yesterday's comments, they have concerns with
items 11-13, including paragraphs 71-77 of IIM/1/4 (the original
FoD proposal). Feel that it is premature until we have a
discussion about underlying motivations. Like Canada, we wonder
who would carry out the work. How does it interact with UNCTAD or
the World Bank? Also, as for benchmarks, these are usually needed
to mark progress along a certain path. However, as we have
concerns on paragraph 59, we need more discussion to figure out
what that path may be. As for a code of ethics or a secondary
office, we can't support this right now because there's no
mention of member state involvement or a list of duties, and we
need clarification. Code of ethics is interesting, but not sure
how it would be implemented. In its current state, US has a lot
of concerns with this proposal, especially given the underlying
premises in the FoD proposal. Supports Swiss statement &
encourages this work to live in the PCIPD.

~ India: We've heard references to misgivings about paragraph 59,
but we find it difficult to recognize anything that would be
objectionable. For instance, some balk at the statement of
concern about IP being seen as an end in itself, claiming that
nobody here feels that way. Yet several delegations have spoken
at length about the need for an "IP culture." It is India's
understanding that IP should further other social goals. So if
there is a difficulty with statements like this, we don't
understand.

~ Sweden: We are generally positive on item 13, though we agree
that there is some elaboration that needs to be undertaken.

~ UK: Also positive about these proposals and are interested in
exploring them in more detail. Whatever we do, we should not
undermine WIPO's current ability to undertake capacity building
and technical assistance. Also room to learn from other UN bodies
like IMF and UNCTAD.

~ Argentina: We share the concern about this being a
member-driven project, and we appreciate that other members are
willing to explore this with us. In fact, in para 28 IIM/1/4,
there is a proposal to undertake member-accountable &
member-driven actors like WERO. Membership is an open question -
our main concern is that it be as independent as possible.

~ Chile: Expresses support for new consensus on WIPO guidelines,
and in the need for new benchmarks & indicators to evaluate those
guidelines.

~ France: Supports benchmarks and indicators. This merits further
in-depth discussion on how this can be made more concrete.

~ Chair: Proposes items 7, 8, 9 for discussion.

~ Canada: Wants clarification on order of items.

~ Chair: Apologizes, thinks that he got a bit lost. Argentina's
mention of other items threw him off. We'll continue talking
about 11 and 12 now, then move on.

~ Argentina: Clarification - when I spoke, I talked about all 3.
Some delegations only spoke about a subset.

~ Chair: That's right - some talked about setting up a new body,
others about benchmarks. I think this is a central issue, and I'm
glad that debate is not over. After speaking of Items 11/12/13,
we'll cover 15. Before that, what has Bahrain proposed? No
discussion? Okay - then here's Brazil on Items 7/8/9.

~ Brazil: There is concern that rapidly expanding international
IP regimes are placing constraints on developing countries to use
IP to suit national needs. There is also concern about the burden
of implementation. We think that development goals should be
central to WIPO's norm setting. Yet it seems that these have been
crafted with very little attention to their costs and benefits to
developing countries. It seems that, to date, IP has been viewed
solely as a tool to increase creative output, without attention
to Least Developed Countries’ needs. Until now, norm-setting in
WIPO has been focused only on arranging international agreements
that are designed to strengthen IP.

In the last GA there seemed to be broad agreement among Member
States to mainstream the development dimension into WIPO's
activities. We want to integrate the development dimension into
WIPO's norm setting activities.

Item 7 in our document refers to principles and guidelines for
norm-setting. In effect it has been difficult to address
development concerns into WIPO's work programme, as highlighted
by the African Group with respect to norm setting.

1) Norm-setting should be member driven and transparent - One
would expect Member States and only Member States to make
decisions on norm-setting activities.

2) There should be a comprehensive review of its effect on
sustainable development.

3) There should be recognition of different levels of economic
and social levels of development. We also need to view citizens
as users of the IP system.

4) Finally, want WIPO's work to be commensurate with other UN
mechanisms like the Millennium Declaration’s Goals on full
implementation of Convention on Biological Diversity.

Mentions WERO. Also suggest the holding of public hearings prior
to any norm-setting activities.

~ Chair: Thanks Brazil for exhaustive presentation.

-=-=-=COFFEE BREAK=-=-=-

~ India:

~ US: Finds the inclusion of pre-ordained language in treaties
inappropriate. Their understanding is that negotiations determine
the language in a given treaty, and that any country is free to
offer language in a case-by-case basis.

[RB: This is somewhat ironic, given that both the USTR and the EU
have “model” IP text that they seek to incorporate in their
bilateral and multilateral free trade agreements.]

~ OEB (European Patent Office): 10 years after TRIPS, we have yet
to see Least Developed Countries or Developing Countries that
have systems that are sufficiently advanced. OEB is directly
engaged in technical assistance, so they are not criticizing the
work of others. It's just that IP offices may not always be the
ideal targets for using IP for development, so we must look
wider.

On the future of Technical Assistance, they feel that the UK's
proposals are very positive [RB: Not their proposal to the IIM,
but apparently a separate exchange. No more info provided.]

~ IFRO:

~ International Confederation of Songwriters, Authors & Composers
& BEAM: We work in the developing world, and the criticisms that
they have heard about training in the developing world are
bizarre. By partnering with WIPO, they go around the developing
world, building partnerships and providing education around the
importance of copyright for artists and society. WIPO funds them,
provides them with experts, and adds an institutional imprimatur.
They have provided real benefits to real people. Urges not to
throw baby out with bathwater.

[RB: We missed the following groups as we were preparing our own
statements. Updates or summaries of what was said are welcome,
and can be sent to Ren <mailto:address@hidden>.]

~ IFLA:
~ TWN:
~ International Chamber of Commerce:

~ EFF: Full statement available here
<http://www.eff.org/IP/WIPO/>.

-=-=-=LUNCH=-=-=-

[RB: We missed the following groups as we were preparing our own
statements. Updates or summaries of what was said are welcome,
and can be sent to Ren <mailto:address@hidden>.]

~ International Federation of Actors:
~ World Blind Union: Absent
~ EDRI:
~ Consumers International:
~ EIfL:

~ Civil Society Coalition: Supports FoD. First, we think shifting
this discussion to the PCIPD is improper. It would send the
message that WIPO members states are only interested in tucking
these issues away with the intent that nothing practical should
ever emerge.

Many developed countries pay lip service to the needs of
developing countries, but their proposals here indicate
otherwise.

90% of WIPO funding comes not from member states but from the
business sector. Therefore, proposals to enhance impartiality in
WIPO are especially important.

~ CIEL: Supports inclusion of sustainable development in all WIPO
proceedings. Emphasises impact assessments.

~ IPI: Mentions that he is also a representative of civil
society. Many of the civil society groups that have spoken so far
give the impression that theirs is the entirety of civil society.
There is no single civil society perspective. Mentions that among
economists, IP-skepticism is a minority opinion. Wants to
reinvigorate the PCIPD.

~ Japan: Comments on change to Item 8. Believes that it will be
difficult to evaluate norm setting, but that we should suspend
discussion until such an assessment can be completed.

~ Argentina: We would like to look at the organization of our
work. You had mentioned earlier that we would have time to
consider items 1,5, and 6.

~ South Africa: There are mixed feelings in this house about
support for the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/>. It is inevitable that
in reform, to some it brings fear and to some it brings hope.
South Africa's experience with reform is positive.

We have undertaken a radical reform process. With respect to norm
setting, norm-setting should recognize differences between
least-developed countries and developing countries. There should
be provisions to set protection levels commensurate with the
level of a country's development. There should be provisions to
stop anticompetitive behavior.

~ UK: On Items 7-9, they fully agree that norm setting should be
member driven. However, like previous speakers, they have
concerns about the need for explicit guidelines because every
country has the ability to make proposals. More discussion is
necessary on impact assessments, as they are practically
difficult to deploy.

~ Iran: Our position has been clearly articulated in IIM/1/4.

~ China: Concerning points 7, 8, and 9-in principle we support
these proposals.

In order to be brief and specific, we hope that WIPO will
consider norm setting, one of the most important missions of this
organization.

Even if developing countries can reach the goals of TRIPS, it is
hard for them to reach the higher standards called for in
bilaterals and regional Free trade agreements.

In norm-setting we should take into account development concerns.
In the Patent Cooperation Treaty reform we would like to work in
consensus to take care of users. The definition of users should
not be restricted to right-holders.

~ Canada: The modification of legal standards can have profound
implications. We have examined the proposals, but Canada remains
to be convinced of any need for new guidelines and principles for
norm-setting.

With regard to impact assessments, we also have such things at
the national level, and we share the UK's concerns about their
exportability.

With respect to public hearings, we believe this is a national
prerogative and not for us to mandate.

We'd be very interested in responses to some of these concerns.

~ Chair: We have finished discussions of 7,8, and 9 so I would
like you to address the Chair's Summary.

~ Argentina: We'd like to talk about the timeframe of the
meeting. We should continue discussion of the proposals before
proceeding to the summary. The substantive discussion has been on
the backburner for the whole three days, and so we wonder if it's
necessary to spend time on the summary of the chair.

We wish we had more time to study the Chair's summary but we
don't. Let's continue the discussion without spending two hours
on this summary.

~ India: We share Argentina's sentiments. We are not in need of a
summary, especially as we're planning to simply pick up at the
next session.

~ Chair: We are in your hands.

~ Chile: We support the proposal of India and Argentina.

~ United States: It's not clear to me what is being proposed. Are
we to understand that we will not have a Chair's summary as
proposed by Argentina and supported by India and Chile?

~ Chair: Given that we have already adopted the agenda, which
includes the summary, I think we should have it. We'll just
discuss it at the end of the day. I like this idea.

~ Italy: This seems reasonable considering the text of the
Chair's summary seems fair and accurate.

~ Morocco: We're wasting time. Argentina's proposal is wise,
let's get on with the discussion.

~ Chair: I therefore propose that since we have moved forward in
the discussions, why don't we discuss item 14. Could the UK
please present this item?

~ UK: The UK has had an opportunity to present its proposal, and
that it is clearly set out in documents. Won't go into detail.

The delegate has been working for UK government for 15 years.
Since that time, the UK government has had a change of mindset
with regard to international development. A then-moribund office
called DFID was reinvigorated. It acted as an agent of change
from the inside. Such was the change in mindset, that the UK
Department of Trade and Industry was able to actively support the
formation of the UK CIPR.

Some have argued that the UK proposal is like passing the buck.
"We think it's more like passing the baton in a relay race. It
doesn't matter who has the baton as long as we are moving
forward."

Encourage others to weigh in, especially developing and
least-developed countries.

~ Argentina: As we have said, all of the themes of the agenda
being brought to the PCIPD does not seem like a good idea. That
committee's theme is technical assistance. Also, would like to
ask a question: the UK wants WIPO to turn this over to PCIPD, and
it also seems that we are supposed to hand results back to the
general assembly - why the emphasis on switching, when this
itself seems to be beyond our own power?

~ Canada: PCIPD is the best venue, though we would support a
review of that mandate to make sure that it is broad enough.

~ Romania: Wants to recall statement of Central and Eastern
European, where we expressed support for discussion of this
mandate in PCIPD. It is true that PCIPD already has a mandate,
and it is our feeling that revising that agenda is the best use
of our resources. Finally, Romania is fully aware of the
importance of development, including Romania and IP. Yet, WIPO is
not an agency totally devoted to development. Consequently, we
don't think that there is a need to turn this into a solely
development-oriented organization. Many of the proposals in the
FoD proposal are beyond the scope here. Reform of the
organization is a totally different topic.

~ Algeria: If we accept the proposal for a reinvigorated PCIPD,
we must recall the mandate that the IIM is supposed to handle
this. We should not fragment this into smaller parts.

~ Brazil: As we already mentioned in the first IIM, where we
observed the basic thrusts of the original UK proposal, the UK
proposal is a good effort in its diagnostic aspect, but a poor
concept with respect to the solution. The solutions were not
commensurate with the challenge we face.

The DA is not anti-IP as asserted by certain pro-IP NGOs (TB:
Referring to IFPMA's intervention).

Development concerns should be factored and mainstreamed into the
work of this organization, which is a UN body. By consigning it
to the PCIPD, you run the risk of burying it. A rejunevated PCIPD
would effectively be a garbage can for development concerns. This
should not be dealt with such a fashion. The IIM is the
appropriate body to discuss the DA as its status is
hierarchically more significant than the PCIPD.

~ Italy: We should reinvogorate the PCIPD and we could expand its
scope.

~ Switzerland: The mandate of the PCIPD is broad enough to
consider DA proposals. As the UK said, we could expand the scope
of the PCIPD if needed.

~ Australian: Plugs the PCIPD

~ Russian Federation: As a general comment on Item 14, we would
be in favor of reinvigorating PCIPD

~ Iran: The IIM's mandate makes clear that its role is to
*examine* the proposals put forth. We believe that the IIM is not
necessarily the place to discuss implementation. It therefore
makes sense to differentiate these issues, and reinvigorating the
PCIPD is premature.

~ US: There seems to be contradiction among some members of WIPO.
They articulate strong desire for reform, but oppose reform of
the PCIPD.

Feels that WIPO does indeed include the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/> in all of its work.

Does not feel that the UK proposal is an attempt to put the DA in
a "garbage bin" or technical assistance-only body.

~ India: Let me thank the UK for the proposal. We appreciated
their nuanced understanding of the issues raised by the
Development Agenda. We do not agree that these DA issues should
be consigned to the PCIPD.

We are surprised to see one committee singled out for attention,
especially one that is singularly lacking in teeth

We are are surprised to hear that all of WIPO's work is
pro-development. Why is one committee favored over the others
(such as Standing Committees on Patents, , Trademark etc) when
all areas are affected by the development dimension.

Could we then send this to the Standing Committee on Patents,
expanding its mandate? Or the Standing Committee on Copyright and
Related Rights? Or another body? Certainly not - the work will
have to be addressed in all of the relevant committees. The
PCIPD, other than dealing with technical assistance, is for
example singularly inept at norm setting.

Instead, we should be coming up with consensus recommendations to
the General Assembly, so that *they* can delegate work
appropriately to the relevant committees.

~ Japan: IP and development is a complex issue. WIPO should deal
with this in an efficient and transparent manner.

~ France: We like the annexes of the UK document which will help
us explore these issues in greater depth.

~ Colombia: Similar to what was said yesterday, the UK proposal
is welcome, but the content & scope of the issues we are studying
goes beyond the mandate that the PCIPD has to deal with these
issues. PCIPD can carry out an important function, but there are
decisions that may be adopted by the GA that may be out of scope
for PCIPD.

We should be moving towards a set of recommendations that can be
given to the General Assembly and could then be delegated to each
committee.

~ UK: Responding to Argentina. We acknowledged from the outset
that there may be legal issues to work out. From studying PCIPD,
we note that there are no limits to its mandate. It also stems
from the WIPO conference. The General Assembly is composed of
WIPO Member States who are members of at least one WIPO treaty.
[Ed note: General Assembly members must be a member of one of the
pre-existing “Unions”, such as a party to the Berne Convention.]

The WIPO Conference, on the other hand, is composed of WIPO
convention signatories and countries that are not parties to a
treaty. This is the kind of cross-cutting issues included in the
development.

It is my understanding that the WIPO Conference is scheduled to
disperse, and the assembly would then take on the work of the
committees. This is not likely to happen in the near future. We
want to explore ways for the PCIPD to interact more with the GA &
other committees.

~ Chile: We would like to thank the UK for its proposals. We
especially would like to lend support to the proposals to carry
out assessments for norm-setting and an open code of conduct.

The PCIPD can play a role in the Development Agenda
<http://www.eff.org/IP/WIPO/dev_agenda/>, but is not necessarily
competent to deal with all the issues raised by the Development
Agenda <http://www.eff.org/IP/WIPO/dev_agenda/>. Some of this
work should be dealt with in other relevant committees and also
the General Assembly.

~ Chair: I would like to see if we can now deal with the Chair's
Summary since we only have until 6:15.

~ Italy (Group B): We agree that this text is fair and balanced
and in principle we accept the text.

~ India: We have an hour yet to go. Yet we have 15 items to deal
with. Could we not deal with one or two more items, such as a
proposal for the consideration of measures to ensure wider
participation of civil society?

~ Chair: Let's hear if Group B can adopt this summary. If so, and
it is noncontroversial, then we can proceed. I want to make sure
that we can discuss this in case it requires debate.

~ Argentina: We don't think the wording of para 6 of the Chair's
Summary is perfect. Bahrain's proposals were presented not
discussed. In fact two new proposals were presented, but they
were not really discussed.

~ Brazil: This document is a good basis. We would like to suggest
minor amendments. We would like to add an additional factual
paragraph between 6 and 7 that includes document numbers
discussed.

In regard to para 7, we would suggest adding after "proposals" in
the first line:

"derived from written submissions by Member States".

Delete the Member States at the end of statement. Delete item 10
from para 7 because 10 was dismembered into 10 and 10bis.

~ Colombia: Had the same concern as Argentina with regard to
paragraph 6. Perhaps something besides "discussed." Also suggest
adding a deadline for proposals so that we can have time to
react.

~ US: One technical change and a question. On relationship of 10
and 10 bis, we agree with statement from Brazil to amend. In
addition, however, we would like 10 bis to be made into 11, then
renumber the remaining items in order to avoid confusion. Also,
would like to get the exact language from Argentina on para 6.

~ India: Reads proposed language change.

~ Argentina: Adjust language slightly by removing "discuss."

~ US: More language clarifications.

~ Mexico: Wants to look at annex of summary. With regard to the
content of the Mexican summary, we think it should be moved from
item 15 to 19, 20, and 21 because it has much to do with Bahrain.

~ Chair: If you do that, then Mexico is no longer listed as a
sponsor. Okay? Okay.

~ Argentina: We also think that we should add item 14, since
that's the last item we discussed.

~ Chair: I get the impression that we don't have any objections
to these changes, so I submit that we should give time to the
Secretariat and continue discussion.

~ Bolivia: [Garbled]

~ China: There seems to be a translation mistake.

~ Chair: We will now deal with items 1, 5 and 6 from our list. I
would ask the FoD to present these times.

~ Brazil: In the spirit of inclusion we would suggest that we
could give Bahrain the floor to present one of their proposals.

~ Chair: Bahrain is not present and they indicated to me that
they would rather discuss this at the 3rd IIM.

~ Argentina: We would prefer if we could discuss 1, 5, and 6 at
the third session of the IIM. Could we have a general exchange on
Bahrain proposals?

~ Chair: Not sure that it's wise to, at this point in time,
discuss the Bahrain proposal. They've been leading the
discussion, and have stated that they'd like to discuss it at the
next meeting.

~ Colombia: A preliminary discussion could take place with the
cosponsors, but we would reserve the right to comment later.

~ Argentina: If you would allow us to make some preliminary
comments. We got this last Friday, and our capitols have been
reviewing it since Monday. We'd like to present preliminary
comments.

What we see in the proposal is that it goes over aspects that
were already covered in the biennial meeting last month. We don't
fully comprehend certain budgetary aspects of WIPO's technical
cooperation activities. We don't know where the money is going.

~ US: Unclear about where we are.

~ Bahrain: Please give us more time to respond to items 16-24.

~ Brazil: There are linkages between Bahrain's proposals and
discussions at the budgetary and programme committee.

~ Chair: We have the element of suspense with respect to
Bahrain's proposals.

~ India: Does Bahrain believe those earmarkings adequate or
excessive?

~ Chair: We're out of time, closing remarks.


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