Inauspicious Start To Gurry’s Second Term As IP Policymaking Hits Wall At WIPO

To hear some delegates’ late night closing statements at the General Assembly last night, developing country goals at the World Intellectual Property Organization died this week, as key issues met roadblocks in every direction. But all member states claimed to be shaken by the crash of WIPO’s normative agenda this week, putting the model for negotiating at the UN agency into question.

“We can’t hide facts from ourselves. The agenda of WIPO is in crisis,” a French delegate told the final plenary (translated), comparing it to the stalemate at the World Trade Organization. For staff working on these issues, “what are we going to propose for them, part-time employment?” he said. “Madame chair, I think you are as desperate as we are on norm-setting.”

WIPO’s normative work – including negotiations on policies on copyright, traditional knowledge, and design law, plus rules for creating new WIPO field offices – looked like a ship without a captain at the close of the 22-30 September General Assembly which ran well after midnight last night.

At presstime, it was unclear whether several key committees would meet at all in the coming year.

WIPO issued a statement highlighting the many areas in which progress was made during the Assemblies, and downplaying the disagreement on normative issues.

Despite more than a week of intensive informal negotiations, the annual member state meeting could not reach a decision on the programme of work of two committees and again failed to approve a diplomatic conference on a proposed design law treaty. Developing countries claimed efforts to undermine their interests in the organisation, developed countries alleged efforts to prevent progress in discussions.

Deep regrets, disappointment, frustration, concerns were words repeatedly used by delegates in their closing statement to the 54th WIPO General Assembly which took place from 22-30 September, although some developed countries underlined decisions made at the General Assembly that will facilitate the intellectual property service function of the organisation.

The United States said it was “disappointed but not really surprised.” It is time, the US delegate said, to “seriously consider” an alternative to standing committee system at WIPO. Perhaps delegations could engage in discussions ahead before holding of meetings to identify when political will is absent, he said.

No work programme could be agreed upon for the Standing Committee on Copyright and Related Rights (SCCR), nor for the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

WIPO Director General Francis Gurry, who said he shared the delegations’ disappointment, added in closing remarks, “I do think it is important to contextualise the failures and we find that most of the lack of decisions primarily are related to the normative programme of the organisation.”

“I urge all delegations to really reflect upon the state of our normative programme,” he said, and “to reflect in particular on where you would like to take multilateral cooperation in the normative area.”

On the future work of the committees left without work programmes, Gurry said, “We all have to think, the secretariat and the delegations, of where these failures to decide … leave us.”

“I believe it throws us back on to the programme and budget,” he said, and this needs to be carefully examined “to see exactly what guidance it provides for the work in the coming months and over the coming year,” until the next General Assembly, he said.

Gurry added that the WIPO secretariat would facilitate consultations among member states so that decisions can be taken on the forward work programme “within the framework of the programme and budget.” Gurry was re-elected for another six-year term as director general, starting today.

According to a developed country source, the SCCR is a standing committee and thus meetings should be convened in 2015, whereas the IGC is not a standing committee.

“The IGC is at the heart of developing country interests in WIPO. Why is most relevant committee for developing countries not a permanent committee?” Iran said in plenary.

Brazil demanded that every member state in the room declare that it either supported or opposed its proposal to simply reuse the decision from the 2013 General Assembly on SCCR, which would have extended the committee’s mandate with a possibility of moving to a treaty negotiation if agreed by all. Brazil said that any government that had changed its position on the 2013 decision should explain why. But developed country representatives managed to sidestep the demand.

In the corridors, some developing countries said during the Assembly that developed countries attempted to undermine WIPO activities that are priorities for developing countries, such as the protection of genetic resources and traditional knowledge, and exceptions and limitations to copyright. Several of them told Intellectual Property Watch that the General Assembly was a step backward for developing countries this year.

Some developed countries, on the other hand, said a particular group of developing countries purposefully blocked progress toward agreement during informal consultations on decisions.

Discontent has been mounting since the last General Assembly, with developing countries asserting that the WIPO Development Agenda is not correctly implemented in all WIPO activities. Developed countries contended that WIPO’s core mandate is the protection of IP throughout the world, citing Article 3 of the WIPO Convention (IPW, WIPO, 18 September 2014). There were comments during the week from developed countries that the Development Agenda should focus on technical assistance, a position that seems to hearken back to a decade ago before the 2007 Development Agenda was implemented.

Developing countries also could not get an agreement on a new budgetary definition of development expenditures that they say would better reflect true development spending.

Developed countries, meanwhile, are eyeing the progress that was made on a separate committee, the Standing Committee on the Law of Patents (SCP), where they have begun considering a return to discussions on patent harmonisation.

Four Pending Items, No Decisions

The General Assembly Chair, Amb. Päivi Kairamo of Finland, reconvened the plenary at the end of the afternoon on 30 September to propose four draft decisions on the four last pending issues for adoption: the IGC, the SCCR, the guiding principles on the opening of new WIPO external offices, and the convening of a diplomatic conference on a design law treaty. No decision could be agreed on any of those subjects.

The issues which kept WIPO delegates in informal consultations for 10 days reflected dissensions that arose in different committees during 2014. Some countries said they were not surprised by the outcome.

SCCR

A key aspect of the discussions on the Standing Committee on Copyright and Related Rights (SCCR) is the emphasis that Group B developed countries would like to put on the completion of a draft treaty to protect broadcasters’ rights in the next sessions of the committee, according to developing country sources.

Developing countries, some of which support broadcasting treaty talks, demand that equal attention be given in the SCCR to the three subjects currently addressed by the committee: broadcasting, exceptions and limitations to copyright for libraries and archives, and exceptions and limitations to copyright for education, research, and people with disability other than visual impairment.

On the broadcasting treaty, though, some countries, including India and Brazil, would like the treaty to be limited to signal-based piracy and not include webcasting. According to a developing country source, that is a major issue to be solved before moving forward with the treaty discussions.

Several Group B countries have said in previous sessions that they did not want to start discussions on a binding agreement on either sets of exceptions and limitations, and favour an increased focus on the broadcasting treaty as it is a more mature subject, in their view.

Informal consultations were carried out by Martin Moscoso of Peru, current chair of the SCCR. Short of agreement, the decision proposed decision was stripped to the minimum, taking note of the report of the SCCR and of statements made by delegations.

The African Group requested that an additional paragraph be added to say that the SCCR would continue work on the three current subject addressed by the committee. This was opposed by Group B who favoured the decision proposed by the Assembly chair, stating that there was no agreement. Egypt remarked on “the unwillingness to engage” in areas which are the priority for developing countries.

Brazil said the proposed decision does not “give us the necessary comfort” for the continuation of the work of the SCCR, and underlined the importance of the work on limitations and exceptions toward achieving a more balanced IP system. The delegate suggested that the language of the decision adopted by the General Assembly in 2013 be reproduced, as this language had been agreed by all member states in December. This was supported by several countries, in particular Latin American countries.

Speaking generally, China said at the closing, ” WIPO belongs to all member states. We are not afraid of meeting problems … we should have the courage to address these problems. The delegate called for stronger political will … in order to establish a more balanced IP regime, and benefit more developing countries.

Committee on TK, TCEs, GRs Uncertain Future

The longstanding discussions at the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore (IGC), which have divided member states on how to protect traditional knowledge, genetic resources and traditional cultural expressions (folklore) did not find any conclusion during the General Assembly. Informal consultations were conducted by Ian Goss of Australia.

The draft decision on the IGC noted that the GA decided that the IGC “should meet in 2015 in order to make a recommendation to the 2015 General Assembly as to the mandate of the IGC for the 2016/2017 biennium.”

Kenya on behalf of the African Group asked that this paragraph be replaced by a paragraph noting that the General Assembly decided to convene a diplomatic conference in 2016 on a binding instrument. India said the draft decision is “extremely disappointing and does not reflect the views of member states.” Several developing countries suggested to adopt a similar work plan than the one applied in 2014.

One developing country delegate noted that TCEs had been considered ready to move to a diplomatic conference a few years ago.

Developed countries said the General Assembly should agree on a feasible work programme and should not prejudice the form of the instrument(s) at this time. The European Union also said there was no consensus on the nature of the instrument (s).

South Africa remarked on the rising pressure on delegation that come to the IGC to represent South Africa to reach an agreement within WIPO. “We need the decision. Ordinary people are affected,” the delegate said. “We need to make progress, as we talk piracy continues.” However, he said, “A programme of work without purpose does not interest us.”

“We are convinced the issue is not the text, but the political will,” he said. “So we should work on the political will.”

Australia said failure to agree on a work programme means a lack of progress in developing a framework which could provide certainty for industry, but” importantly will also disappoint those not represented at those assemblies and who have high expectations from member states in relation to these negotiations and that is indigenous and local communities.”

External Offices

The subject of creating new external offices has been a hot debate at WIPO which started at the Program and Budget Committee last year when the budget included provisions to open five new WIPO external offices: one in Russia, one in China, one in the US, and two in Africa. The China and Russia offices had already signed agreements with WIPO and are now open. Since then, a large number of countries asked that guiding principles be established for the next external offices to be opened.

Many countries declared they would be interested in the establishment of external offices, including countries of the group of Latin American and Caribbean countries, and Iran.

The draft decision which indicated that open-ended consultations would continue on the proposed guiding principles for consideration and recommendations to the next PBC and General Assembly was contested by the African Group who said that the approach on the external offices as agreed at the December General Assembly was to work on guiding principles, then set the number of offices and their location, then make a decision which would integrate both dimensions.

Developed countries held the view that agreeing on the guiding principles should come first, before discussing number and location, which was echoed by some countries such as Iran, Pakistan, and the Asia and Pacific group.

The two beneficiaries of the new external offices, China and Russia supported the opening of two offices in Africa and China supported the African Group proposal on including a text on number and location in the General Assembly’s decision.

Informal consultations had been conducted by German Ambassador Thomas Fitschen.

Design Law Treaty

Proponents of the design law treaty have been disappointed when last May, at the extraordinary WIPO General Assembly, member states could not agree on a decision to convene a diplomatic conference to adopt the treaty, after they also failed to agree at the last General Assembly. At stake is the issue of technical assistance and whether it should stand inside the treaty as a devoted article, or should it stand outside the treaty as an attached resolution.

The African Group has insisted that technical assistance be the subject of an article to ensure that member countries of their group, which include least developed countries, have proper technical assistance to help them implement the future treaty.

The United States have maintained in past sessions of the Standing Committee on the Law of Trademark, Industrial Designs, and Geographical Indications (SCT) that technical assistance would be delivered in a swifter manner if it was a resolution, which could be implemented well before the entry into force of the treaty.

Other developed countries have said they could be flexible on either solution but that this could be solved at a diplomatic conference and a solution on how to deal with technical assistance could not be a prerequisite to hold a diplomatic conference.

No agreement was to be found despite informal consultations led by Adil El Maliki from Morocco during the General Assembly. The draft decision presented to the General Assembly left the decision to convene a diplomatic conference for the adoption of a design law treaty to the 2015 General Assembly.

The African Group asked for the inclusion in the draft decision of a mention about including an article on technical assistance in the treaty. This was opposed by developed countries, some of which said different views on technical assistance could be solved at the diplomatic conference, such as the group of Central European and Baltic States, and the European Union.

Libraries Disappointed

The International Federation of Library Associations and Institutions (IFLA) expressed disappointment “at the reluctance of some delegations to engage on SCCR when the issues under discussion are of a pressing nature to libraries and archives worldwide.”

“There was an opportunity to advance the work at WIPO and instead we have seen a continuing of the deadlock that plagued SCCR 27 and 28,” Stuart Hamilton, IFLA deputy secretary general, told Intellectual Property Watch.

“We are grateful to a large number of Member States for their support on a firm work plan for exceptions and limitations for libraries and archives, but we must see Group B come to the table at SCCR 29 in December to substantively discuss how to move the agenda forward.”

“It is alarming to see such pre-mediated blocking of progress at WIPO, and concerning for the future activities of the organisation,” he said.

WIPO Says Goodbye to Head of Conference Services

Gurry, on a personal note, underlined the work of the ubiquitous Henri-Charles Goosens, head of Conference Services since 2006, who will be retiring in October after 24 years at WIPO, and who attended his 21st General Assembly. The plenary took time from its troubles on the last night to give him a unanimous round of applause for his efforts over the years.

 

Image Credits: WIPO Flickr