WIPO General Assemblies Face Big Questions, Small Details

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Representatives of the nearly 200 members of the United Nations World Intellectual Property Organization – as well as industry and non-governmental groups – will gather this week for their annual meeting. In addition to IP policy issues, there are expected to be discussions about the development expenditures, the budget and organisational performance and the internal workings of the organisation, including audit procedures and problems with the construction of new buildings.

The 50th WIPO General Assemblies will be held from 1 to 9 October, links here and here.

It was preceded on 28 September by the first annual Conference on South-South Cooperation, which arose from the WIPO Development Agenda.

Policy Issues

Policy issues at this week’s assembly agenda include copyright, trademarks and industrial design, and traditional knowledge, genetic resources and traditional cultural expressions. The assembly will review progress of various committees and approve their work plans for the next year, some possibly moving toward treaty negotiations like the Beijing Audiovisual Treaty concluded in June.

On copyright, the assemblies will consider the intensification of efforts to agree to a treaty or softer instrument on exceptions and limitations to copyright for the blind and visually impaired. At the last meeting of the Standing Committee on Copyright and Related Rights (SCCR), in July (IPW, WIPO, 26 July 2012), there was frustration over the inability to agree to recommend to this week’s assembly to schedule a diplomatic conference (high level negotiation) on the visually impaired treaty. But an agreement was made to intensively address the issue in an “intersessional” meeting in October (17-19), the next SCCR in November (19-23), and then an exceptional General Assembly in December to decide whether to hold a diplomatic conference next year. The exceptional General Assembly has not been scheduled yet.

This week’s assembly will take note of several other issues on the SCCR agenda, such as limitations and exceptions for libraries and archives, which also received timelines for progress toward treaty negotiations.

Meanwhile, debates may arise over prospective treaty negotiations related to traditional cultural expressions (TCEs or folklore), traditional knowledge, and genetic resources. These issues have been negotiated with concerted effort under expedited procedures in the Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), but the committee could not reach agreement to recommend the assembly call for a diplomatic conference.

The committee is in the middle of a two-year mandate set by last year’s assembly. The mandate was to expedite negotiations toward a legal instrument or instruments for the protection of IP rights in these areas. Dedicated meetings of the IGC were held on each topic over the past year, with varying results. On traditional cultural expressions, the IGC in July left it to the General Assembly to decide whether to call for a diplomatic conference (IPW, WIPO, 13 July 2012). The traditional knowledge talks left off with some disappointment in April (IPW, WIPO, 21 April 2012). On genetic resources, generally considered to be further behind the other two areas, a single text was agreed in February and will be before the assembly this week (IPW, WIPO, 23 February 2012).

The assembly will be asked to weigh the possibility of a diplomatic conference in yet another area, industrial designs. The committee charged with negotiations, Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications (SCT), could not agree earlier this month on whether to move to a diplomatic conference, despite the seemingly low-conflict subject (IPW, WIPO, 21 September 2012).

On patents, the WIPO Standing Committee on the Law of Patents (SCP) got restarted in 2010 after a 5-year hiatus. But differences continue to plague the committee, which in May could not agree on a future work plan (IPW, WIPO, 26 May 2012). The SCP is potentially addressing a number of issues such as patent quality, patents and health, technology transfer, and exceptions and limitations to patent rights. Fees for patent processing contribute the majority of WIPO’s revenues, making patents a high profile subject at the UN agency.

On the WIPO Development Agenda, which was adopted in 2007 and has been in implementation since, there may be questions of ensuring the implementation is fully taking place. Proponents originally sought to transform the organisation from one perceived to favour the North (which owns the vast majority of the world’s intellectual property rights) to one that makes development a top driving consideration.

Oversight, Staffing, Transparency and More

This week will also see important questions about the operations and oversight of the organisation. For instance, changes are being proposed to the audit and oversight structure, which has been expanding and evolving in recent years. Director General Francis Gurry has reluctantly agreed in the spirit of transparency to allow member states to obtain copies of even his office’s internal advisories (he had wanted to just allow them to view it but not have it).

As well, the substantive WIPO secretariat’s Program Performance Report for the 2010-2011 biennium, financial documents and other material will be reviewed during the assemblies.

The secretariat, following an indepth analysis of WIPO development and technical assistance spending by analysts Carolyn Deere and Santiago Roca also proposed a change to development expenditures but it riled some member states at the 10-14 September Program and Budget Committee meeting.

The secretariat had been operating under a broad-stroke rule that any funds to developing countries that do not also go to developed countries are considered development spending. There were complaints that this may have led to an inaccurate, and possibly inflated, figure. The new proposal was to use that basis but then narrow it further to say the funding should be targeted specifically at delineated development activities. This would exclude financing of the organisation’s management, administrative and finance-related activities or functions, it said. WIPO recently provided a Q&A on the definition of development expenditure.

Also on budget, there is some explaining to do by the secretariat about why it appears to be spending reserves on basic items, or a change it is making to the accounting for “after-service” health insurance for ex-employees.

In addition, governance of WIPO is at question at assemblies as well and led to debate at the recent PBC meeting.

And a progress report will be given on implementation of the “strategic realignment” – a restructuring, and in some cases trimming or supplementing – of staff. The realignment implementation, which followed an external consultants’ desk-to-desk review – was launched with Gurry in 2008, and is on track to conclude in December 2012, according to the progress report.

This realignment was a gritty process of redefining and in some cases cutting jobs with an eye toward increasing efficiency and effectiveness of the organisation. It is still somewhat unclear what the next structure is, and though not the stated purpose, the process does not appear to have led to the departure of some of the more contentious employees from the tumultuous times immediately preceding Gurry’s rise to director general. Gurry arrived after his predecessor Kamil Idris departed a year early under a cloud of doubts, following severe internal strife at the agency. For some, that tension still appears to dwell in the corners of the organisation. A side development has been the announcement of an “indefinite” hunger fast by a senior official who in a new letter expresses concern that his career has been harmed by Gurry.

There may also be discussion at the assemblies of concerns raised in recent months about shipments of computers and equipment to sanctioned countries such as Iran and North Korea, as part of a WIPO technical assistance programme. While the UN last week announced that it did not find this activity to be in violation of its sanctions, members such as the United States may have further concerns.

And unsubstantiated accusations have surfaced that assistance such as this might have been approved by the director general in exchange for past or future election votes. With the next election for head of WIPO appearing on the horizon (2014), things are getting political at WIPO.

Construction Delays and Concerns

The assembly will be informed of problems WIPO has experienced with the contractor for its new office building, and will be asked this week to take note of WIPO’s having taken over responsibility for overseeing completion of the building that has run far past its completion date.

In 2008, WIPO undertook a major construction project for a new office building adjacent to its existing headquarters tower overlooking the Place des Nations in Geneva, to be completed by end of 2010. WIPO further got agreement from its members to construct a large conference centre between the two buildings.

The opening of the shiny blue state-of-the-art office building was publicly hailed by WIPO last year, and the workers moved in, but problems with the contractor have quietly delayed the final touches. And now the conference centre is being affected.

In addition, failure to finish the job has had a significant impact on local traffic passing on the major thoroughfare in front of the building.

A new kind of backlog in the IP system?

According to a 7 September update from the WIPO secretariat to the Program and Budget Committee, repeated efforts to get the general contractor, Swiss company Implenia, to live up to its contract and complete the project, failed. In July, the two sides agreed to “amicably” terminate the contract in July, and WIPO assumed responsibility for overseeing the project’s completion. This came about after ongoing efforts to unblock the situation culminating in a meeting of the two chief executives.

WIPO chose Implenia as the lowest bidder in a small pool of bidders. A company spokesperson confirmed that there was an amicable termination, but would not comment on the reasons why it could not finish the work on time. About 96 percent of the work was completed by summer 2011, WIPO said, but little progress was made since then on finishing and repair work, mainly facades, atria glass roof tops, and parquet floor.

Another wrinkle: the same three key members of the general contractor management team were to oversee the new conference hall. WIPO weighed the option of dropping the company, but this would have led to further delay and essentially starting over with bidding now at 2012 rates. The current design for the hall also is unusual and specific to the original arrangement. WIPO said sufficient funds remain to complete the project as proposed.

“The Secretariat is fully confident that the finishing and repair works for the New Building will be carried out, under the management of the WIPO professional service providers (Pilot, Architect and engineers) in the upcoming 12 months period, at no additional cost to WIPO in view of the funds still being withheld until the balance of the final accounts is settled after all works are completed,” WIPO said in its progress report.

As to the conference hall, WIPO said: “The Secretariat is also fully confident that the New Conference Hall Project can be completed in compliance with the architectural and technical quality required under the original terms of reference, without exposing the Organization to liability, within the approved budgets and provisions.”

“The timetable,” it said, “would have to be extended by about six months, according to the current analysis, and therefore it is expected that the Project will be completed by the end of 2013 (instead of April 2013).

William New may be reached at wnew@ip-watch.ch.

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