WIPO Members Progress, But New Offices, Design Treaty Still Unresolved

After adopting the 2014-2015 program and budget yesterday, World Intellectual Property Organization member countries yesterday agreed on some pending issues but so far have not got agreement on principles for future WIPO offices worldwide nor a commitment to finish a treaty on the international registration of industrial designs.

The extraordinary session of the WIPO General Assembly is convened from 10-12 December to complete work left pending at the regular session of the General Assembly from 23 September-2 October.

Informal consultations conducted by General Assembly Chair Päivi Kairamo of Finland between the September General Assembly and this week’s session helped draft decisions on which there was no objection during the consultations, she said.

Yesterday several of those draft decisions were approved.

WIPO Governance

On an agenda item concerning the governance at WIPO, the following decision [pdf] was approved: “The WIPO General Assembly: i) takes note of the documents presented on “Governance at WIPO” under Agenda Item 30 (document A/51/1 – 51st Assemblies), including the proposal presented by the African Group; ii) requests the Secretariat to organize an information meeting with the JIU [Joint Inspection Unit] regarding their Report on the Review of Management and Administration of WIPO prior to the 22nd session of the PBC; and (iii) invites the Member States to submit proposals on Governance at WIPO to be discussed at the 22nd session of the PBC.” The PBC is the WIPO Program and Budget Committee.

The issue of governance had been hotly discussed during the September General Assembly (IPW, WIPO, 2 October 2013). The African Group submitted a proposal [pdf] in which they asked that a two-day meeting be organised to discuss the Joint Inspection Unit report, once it is released [clarification] The African Group proposal [corrected] made many suggestions for improvements at WIPO.

Algeria on behalf of the African Group insisted on the importance of the subject for the group and said it reserved the right to present proposals at the next session of the General Assembly, and requested an agenda item on the matter at the 2014 General Assembly. Egypt for the Development Agenda Group also said governance at WIPO was of great importance.

Broadcasting, Copyright Exceptions Back to Committee

Delegates approved the draft decision presented by the chair which reads as follows: “The WIPO General Assembly: (i) takes note of the information contained in document WO/GA/43/13; (ii) takes note of the statements made by delegations at the forty-third and forty-fourth sessions of the WIPO General Assembly in 2013; and (iii) requests the Standing Committee on Copyright and Related Rights to continue its work regarding the issues reported on in that document.”

Document WO/GA/43/13 is the report on the work of the SCCR. At stake was the work plan for further work of the committee. The General Assembly decision gives a broad instruction to continue work on questions included in the report: protection of broadcasting organisations, limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and persons with other disabilities.

Discussions on the protection of broadcasting organisations include a potential treaty in 2015. Poland, on behalf of the Group of Central European and Baltic States (CEBS) expressed regret that the issue related to the SCCR is being referred back to the committee. The group would have favoured a roadmap on a treaty to protect broadcasting organisations so that a diplomatic conference could be convened in 2015.

The European Union also said that the discussion on the protection of broadcasting organisations is a priority. The delegate, however, said that an international instrument was not necessary to provide exceptions and limitations for libraries, archives and research institutions, or persons with other disabilities. In particular, the delegate said that the Berne Convention for the Protection of Literary and Artistic Works provides adequate exceptions for education and research.

The SCCR meets next week, from 16-20 December. A draft treaty [pdf] for the protection of broadcasting organisations is expected be under consideration. Also on the agenda, a Provisional Working Document [pdf] Towards and Appropriate International Legal Instrument (in Whatever Form) on Limitations and Exceptions for Educational, Teaching and Research Institutions and Persons with other Disabilities Containing Comments and Textual Suggestions.

Committee on WIPO Standards (CWS)

WIPO delegates also agreed on a draft decision [pdf] on the CWS. It reads as follows: “The WIPO General Assembly:(i) takes note of the information contained in document WO/GA/43/16 in relation to the Committee on WIPO Standards (CWS); (ii) takes note of the statements made by delegations in this respect at the forty-third and forty-fourth sessions of the WIPO General Assembly in 2013; and (iii) requests the CWS to continue its work regarding the issues reported on in that document.”

Document WO/GA/43/16 [pdf] contains the report of the CWS. The issue at stake with the CWS is whether or not the committee should report on the WIPO Development Agenda recommendations in its activities. Only two committees apparently do not report on the Development Agenda: the CWS and the Program and Budget Committee. The General Assembly decision also refers back to the CWS to discuss issues further.

Informal Consultations on External Offices

Two decisions remained pending at press time. Informal consultations are ongoing on the issue of the guiding principles for new WIPO external offices and how to include technical assistance and capacity building in the draft treaty on industrial designs to satisfy to the request of the African Group that these elements be inscribed in a legally binding provision.

German Ambassador Thomas Fitschen is facilitating the discussion on external offices, while Kairamo is handling consultations on industrial designs with the help of Marcello Della Nina from Brazil.

The agenda item relating to “General Policies of WIPO Concerning Governance of External Offices” was requested [pdf] by China. They suggested that “The new agenda item is only for the purpose of streamlining our current work instead of creating new issues for the upcoming 52nd GA, which already has a crowded agenda.”

After the consultations between this week’s meeting and the regular General Assembly in September, conducted by Singapore Amb. Kwok Fook Seng, a proposal [pdf] was put forward by the Group of Latin American and Caribbean Countries (GRULAC), Group B developed countries, CEBS, and India on “General Principles Regarding WIPO External Offices.”

Proponents of the proposal said the text did not fit exactly with their requests on the subject but it was the result of compromise. Japan for Group B said guiding principles are a prerequisite to any new WIPO external office. Group B said it wished to add some additional elements such as the inclusion of a reference on the limited capacity of WIPO for the establishment of external offices, and the necessity of critical review of the network of external offices.

The African Group, however, requested clarity on where and how many new offices will be opened in the next biennium. The WIPO secretariat had proposed the opening of five new offices, two of which are approved (Russia and China), two in Africa, and one in the United States. The group said it could not endorse the proposal at this session and proposed to continue discussion at the next session of the PBC. Pakistan also suggested avoiding taking a rush decision.

Developed countries are concerned about the budget implications of new WIPO external offices. The EU said that new offices should be limited in number and be budget neutral. China was also of the opinion that decisions on number and location should be made.

Pakistan said that the most important issue is to have greater clarity on the role, mandate, and functions of an external office, which is not clear in the guiding principles. He asked about the difference between a national and a regional WIPO external office. Countries that are not part of a regional external office should not be negatively impacted in its work with WIPO by the opening of such office, he said.

Pakistan was also concerned about budget reallocation and said that several candidates for external offices are countries with highly advanced economies and it seemed incongruent for WIPO member states to be required to provide funding for theses external offices. He said the guiding principles should include the concept of budget neutrality.

Industrial Designs, Legally Binding Provision

According to Della Nina, who facilitated informal consultations after the September General Assembly, only one issue is preventing the agreement on the convening of a diplomatic conference in June 2014.

No opposition to such diplomatic conference was voiced by delegations who participated in the informal consultations, he said, however several delegations were of the view that the basic proposal for the industrial designs treaty should include provisions in the form of an article concerning technical assistance and capacity building for the implementation of the future treaty and no consensus could be reached yet.

All delegations, he added, agreed that technical assistance and capacity building activities and associated resources under the future treaty shall follow the programme and budget process of WIPO.

A draft decision was prepared that was accepted by delegations except concerning the legal nature of technical assistance and capacity building provisions, Della Nina said. A compromise solution, he said, could be to qualify technical assistance and capacity building in the draft decision on the basis of three clear alternatives indicated between brackets: “(legal) (legally binding) or (normative) provisions.”

The draft decision includes the decision to convene a diplomatic conference in June 2014 to negotiate and adopt a design law treaty, to request the WIPO Standing Committee on Trademark, Industrial Designs and Geographical Indications (SCT) to expedite work to consolidate the draft text with one session of the SCT scheduled in the first quarter of 2014, to accept Russia’s invitation to hold the conference, to set up a preparatory committee back to back with the next SCT session.

The United States said it could not agree with a legally binding provision. GRULAC said the group had “maximum flexibility” and with the legal information provided by WIPO General Counsel Edward Kwakwa, the group was flexible with the three language options (legal, legally binding, or normative) qualifying technical assistance and capacity building. This is a departure from the previous session of SCT in November where GRULAC insisted on technical assistance and capacity building be part of an article.

The African Group held fast to its request to have a legally binding provision in the draft treaty, and underlined its flexibility by not requiring that this be an article but rather a legally binding provision. The group asked that the General Assembly respect the legitimate request of the African Group. This was supported by several individual member states such as Egypt, South Africa, Iran, Senegal, Algeria, Ethiopia, Mali, and Nigeria.

According to a developing country source, Kwakwa presented four different ways to have a provision on technical assistance and capacity building: an agreed statement, an appendix, an article, or a resolution. According to the source, the effectiveness of such provision and its mandatory nature are linked to the way this provision is worded, and more importantly how countries would be implementing it.

Informal consultations were held yesterday afternoon with Kairamo and Della Nina on the subject, and are still ongoing this morning.