Agreement On Future Work For Development Committee Snatched From Defeat At WIPO

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In what could be compared to an obstacle course, World Intellectual Property Organization members agreed late last night on the future work of a committee working on the development dimension of the organisation’s activities.

The work of the ninth session of the Committee on Development and Intellectual Property taking place from 6-11 May was arduous as delegates had to go over a number of studies, evaluations and review, decide on second phases of projects and on the future work of the committee amidst obvious dissension on several areas.

The draft summary by the chair [pdf] was released at the end of the afternoon on the last day of the session, and underwent major edits over the following four hours, as developing and developed countries jousted on language, each side claiming the need for the summary to give a factual account of deliberations. The final version is not yet available.

[Editor’s Note: quotes in this story from the meeting floor are from a rough transcription; exact language to be confirmed.]

External Review on Technical Assistance

A number of areas revealed contention over the week. One of them was the discussion about the fate of an external review of WIPO technical assistance co-authored by Carolyn Deere and Santiago Roca (IPW, WIPO, 9 May 2012). Pointed exchanges took place before delegates agreed on the amended language to paragraph 9(f) of the summary by Chair Mohamed Siad Doualeh, the ambassador from Djibouti. Para 9(f) of the summary deals with the external review, and the management response to the external review.

After a proposal by the Group B developed countries to reduce the length of the paragraph, rewording of most of the parts of the paragraph had to be negotiated. The paragraph now reads “Upon request by the chair the secretariat identified the recommendations which, in its view, were important and immediately implementable.” The recommendations concerned three specific areas: the WIPO initiative on country plans for technical assistance, WIPO’s work on national IP strategies and methodology, and the WIPO Academy’s work.

The chair’s summary now also notes: “Some delegations underlined the importance of enhancing and improving the delivery of technical assistance to the realisation of the Development Agenda Recommendations.” The summary also was changed to read: “The Committee agreed that the Deere/Roca report, management response, and the joint Development Agenda group and African Group proposal (CDIP/9/16) would be further discussed, at its next session with a view to considering the implementation of the recommendations.”

The edited is peppered with mentions of “some member states” instead of “the committee,” betraying proponents’ firm stands on their positions.

Coordination Mechanism at Heart of Discussions

Another sore point was the contribution of the relevant WIPO bodies to the implementation of the 45 Development Agenda Recommendations. The United States, speaking on behalf of Group B countries, said paragraph 8 of the summary applied only to work being done in the Committee on WIPO Standards and proposed to change the second sentence to read: “Delegations expressed their support for the initiative by the Chair of the WIPO Assembly to facilitate an understanding of the coordination mechanism, mainstreaming of the Development Agenda Recommendations and the expressions therein in the special rules of procedures of the Committee on WIPO standards.”

This led to strong reactions from South Africa, Algeria on behalf of the Development Agenda Group (DAG), and Egypt on behalf of the African Group. Algeria proposed to change this sentence to: “expressed their support for the initiative by the Chair of the WIPO Assembly to facilitate an agreement on the implementation of the General Assembly decision on the coordination mechanism.”

Egypt on behalf of the African Group, supported by DAG, pointed out that the proposed language merely reflected discussions in the committee, to “put things in perspective.” The South African delegate said that the fact that the chair of the annual General Assembly was appointed to hold informal consultations, and not the CWS chair, indicated that the consultations would be broader than the CWS.

The US delegate replied that the CWS was the first WIPO committee to be suspended, in particular over the issue of the coordination mechanism in 2010, and at that time, the chair of the Assembly helped to negotiate a solution in that particular committee. Last week, he said, “the issue on the coordination mechanism resurfaced,” so the task was again appointed to the chair of the Assembly (IPW, WIPO, 7 May 2012).

Pakistan, which was the coordinator of the Asian Group, finally proposed a compromise which was adopted. The second sentence of the summary became: “Delegations expressed their support for implementation of the GA decision on the coordination mechanism.” The US asked that the word “some” be added at the beginning of the sentence.

Flexibilities – Duplication of Work

There was no shortage of occasions for delegates to exercise their diplomatic skills during this session, and the CDIP’s work on flexibilities in the IP system was one of the areas where regional coordinators worked hard to find consensus.

In particular, developed countries voiced concern about duplicating work already carried out in the WIPO Standing Committee on the Law of Patents (SCP), which meets next week.

The CDIP decided to ask the secretariat to prepare a document on four patent-related flexibilities that have already been addressed in the SCP, and whether those flexibilities could be addressed by the CDIP from the same or a different perspective. The flexibilities addressed by the CDIP are found in the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

An informal document on flexibilities [pdf] was discussed by regional coordinators which was later adopted with some modifications, to be included in the chair’s summary. The headline now includes the full language of paragraph 2(c) of document CDIP/9/11 [pdf] to address concern about further work on flexibilities, and paragraph 1 now reads: “The Secretariat will prepare for the next session of the Committee, a document showing if any flexibilities listed in paragraph 2 have already been addressed in the SCP, and whether such work would be addressed from the same or a different perspective. This document will also contain further explanations on the latter two bullet points in paragraph 2.”

Paragraph 2 displays the four flexibilities: the scope of the exclusion from patentability of plants (TRIPS Art. 27), flexibilities in respect of the patentability, or exclusion from patentability, or software-related invention (TRIPS Art. 27), the flexibility to apply or not criminal sanctions in patent enforcement (TRIPS Art. 61), and measures related to security which might result in a limitation of patent rights (TRIPS Art. 73).

After another run of informal consultations, the first part of paragraph 9(c) of the chair’s summary now reads: “The Committee discussed the work programme on flexibilities in the IP property system – New elements proposed at CDIP/8 (CDIP/9/11). Some delegations emphasised the importance of WIPO’s work in the field of flexibilities and the IP system. Some delegations emphasised the need for the committee to undertake this work efficiently and without duplication of the work taking place in other committees and/or forums,” to accommodate concerns of developed and developing countries.

WIPO Asked to Keep TK Separate from Public Domain

On 10 May, discussions on an information document [pdf] clarifying the scope of a study on copyright and related rights and the public domain [pdf].

Discussions on recommendations 1(c), 1(f) and 2(a) of the study turned sour when developing countries voiced concerns about what they said was a WIPO interpretation of recommendation 2 (a) of the study, mentioning traditional knowledge (TK) and traditional cultural expressions (TCEs), both of which are currently being hotly discussed in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Recommendation 1(c) deals with the voluntary relinquishment of copyright in works and dedication to the public domain, 1(f) encourages international initiatives to develop technical or information tools to identify the contents of the public domain, and 2(a) calls for enhanced availability of the public domain in particular through cooperation with cultural heritage institutions and the United Nations Educational, Scientific and Cultural Organization (UNESCO).

Egypt for the African Group said that TK and TCEs are essential elements of cultural heritage and as such have no links with the public domain. A number of developing country delegations including Brazil, the African Group and the DAG suggested that reference to TK and TCEs be removed from the information document.

WIPO said during the session that the organisation had been invited to participate in the upcoming UNESCO conference “Memory of the World in the Digital Age: Digitization and Preservation,” to take place in Vancouver, Canada, from 26-28 September.

The DAG, supported by the African Group, expressed concern about the way WIPO would characterise TK and TCEs at that conference. “We would appeal to the secretariat when they participate in the Vancouver conference to be very careful indeed about the kind of contribution made by WIPO,” the delegate from Algeria said.

“WIPO should be very cautious and prudent indeed in what it says at that conference and should not in any way let it be inferred that TK or TCEs are part of the public domain,” she said. “Anything that is said by WIPO at that conference should be purely technical in nature.”

South Africa added that the committee was just being informed of WIPO’s participation in the UNESCO conference and that it would appreciate if WIPO just “voice what is happening in the IGC” during the conference. India concurred asking that no prejudice be done to ongoing negotiations in the IGC.

Article 9(g) on recommendation 2(a) of the chair’s summary was amended to read, essentially: “Some delegations requested to eliminate from the document any reference to traditional knowledge, TCEs and folklore in order to dissipate any concerns relating to overlap with the public domain, taking into account work undertaken in the IGC, it was agreed that the document would be revised accordingly.”

The committee is also divided on whether or not discussions should be extended on the study. Compromise language now replaces the second sentence of paragraph 9(n): “Some delegations have proposed that this issue will be discussed in the next session. Some delegations have opposed that discussion in the next session. The chair concluded that this issue will be discussed in consultations on future work,” in an attempt to give a faithful account of discussions in plenary.

New Burkina Faso Project Adopted

One of the main converging points of the session was the unanimous support to the Burkina Faso project on strengthening and development of the audiovisual sector in Burkina Faso and certain African countries, which was adopted by the committee.

Developed countries hailed the project, and in particular the US on behalf of Group B who said that this project was “exactly the type of project that should form the basis of the CDIP’s work, that is how IP can be used for development.”

Switzerland added that it was “very positive that delegations should take the initiative to present projects that meet specific needs and aim at using IP in order to promote development, which we feel is the initial aim of the Development Agenda.”

Democracy and Holism

“Diplomacy did prevail,” a delegate said at the closing of the session. But it seems that future work will likely still be a place where delegations hold fast to their positions.

Separately, at the outset of weeklong meeting, the chair told Intellectual Property Watch: “The objective is to make sure the agenda as set by member states is discussed in a holistic manner, and the mandate of the CDIP is fully executed. I expect member states to help me in that endeavour.”

Perhaps staying at the negotiating table until the wee hours of the night in order to get a result means they did just that.

William New contributed to this report.

Catherine Saez may be reached at info@ip-watch.ch.

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  1. [...] The future work on patent-related flexibilities in the multilateral legal framework also will be discussed by delegates. At the last session of the CDIP, from 7-11 May, divergence between countries arose around the committee’s work on flexibilities. Developed countries in particular voiced concern about duplicating work already carried out in the WIPO Standing Committee on the Law of Patents (IPW, WIPO, 12 May 2012). [...]

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