WIPO’s Future Work, Past Credibility On Table At General Assemblies

The top officials of the World Intellectual Property Organisation member states this week gather for their annual meeting facing an unusual number of critical issues for the U.N. body, several of which involve the credibility of the organisation itself.

The issues before the WIPO General Assemblies, which range from global patent harmonisation sought by its most influential members to scrutiny of WIPO’s financial practices to the proposed wholesale reform of the organisation to more strongly reflect developing country concerns, also appear to be more closely tied to each other than usual, observers say. The assemblies run from 26 September to 5 October at WIPO headquarters in Geneva.

An issue of top concern for developing countries and one that sets this year apart from the past is a proposal for a WIPO Development Agenda that would affect many of its activities. The proposal reflects dissatisfaction among many members with WIPO’s perceived orientation toward its biggest clients – and contributors: the developed countries.

The development agenda proposal was first introduced at the General Assemblies in October 2004 by Argentina and Brazil, who were joined by 12 other so-called Friends of Development. It has been expanded during the year and includes a variety of changes to WIPO’s structure and operation including greater transparency in policy-making and budget-setting, an office to evaluate the development impact of WIPO activities, and changing its bylaws to better resemble other U.N. bodies.

Last year, the General Assemblies ordered an Intersessional Intergovernmental Meeting to address the development agenda proposal. But after three IIMs of three days each (in April, June and July) and a brief fourth IIM on 16 September (to adopt the report of the third), negotiators reached impasse and have handed the debate back to the assembly with no recommendation.

A number of countries, including the Friends of Development, have proposed the continuation of the IIM process in 2006 in order to continue work on the unresolved proposals. Competing proposals emerged during 2005 from the African Group, 11 Arab countries led by Bahrain, Mexico, the United Kingdom, and the United States.

The key counterproposal, credited to the United Kingdom, was to move all discussion of a development agenda to the relatively lacklustre Permanent Committee on Cooperation for Development Related to Intellectual Property, PCIPD, which would be “reinvigorated” for the purpose. The United Kingdom assumed the presidency of the European Union on 1 July, and the EU at the July IIM collectively backed the call for the continuation of the IIM process, though it waivered somewhat late in the meeting. The EU proposal also included the suggestion for the IIM process to use funds allocated for the PCIPD.

Developing countries have resisted the PCIPD proposal, arguing that it lacks power and has struggled to carry out its only current responsibility – technical assistance. Some are hopeful that the General Assembly will be able to find agreement on some substantive issues, but at minimum extend the IIM. The main opponents of this extension are Japan and the United States, who are the biggest backers of the PCIPD proposal. On the General Assembly agenda, the development agenda is immediately preceded by a discussion of the PCIPD.

Prevalent Patents

Possibly tied to progress on the development agenda is a perennial key issue for the biggest users of the patent system – the European Union, Japan and the United States – which is to move WIPO toward the harmonisation of its member states’ patent laws. The General Assemblies are expected to consider a proposal for a Substantive Patent Law Treaty rejected by the Standing Committee on Patents (SCP) in June (as well as in 2004). Member states have soundly rejected the proposal to date, but it is possible there is some political linkage of the patents issue with the development agenda proposal, sources said.

Patents play a vital role at WIPO, especially in the budget discussion, as a significant portion of the organisation’s revenues are derived from fees for filing patents. The United States in particular has expressed frustration with the inability to move the patent harmonisation issue at WIPO and has promised to take the debate outside WIPO.

The key concern of developing countries with the patent treaty proposal rejected by the SCP in June is that it separates two topics of interest to them – disclosure of origin and genetic resources – from the other four topics – prior art, grace period, novelty and inventive step. The U.S. and Japanese proposal for a new work plan was backed by a disputed February consultation in Casablanca of countries invited by WIPO Secretary General Kamil Idris. Some developing countries argue that patent harmonisation does not belong at the General Assemblies as no agreement was reached on how to proceed nor to recommend the proposal be forwarded to the assembly.

Broadcasters’ Rights Treaty

The General Assembly will be asked to agree to convene a diplomatic conference (high-level negotiation) on the contentious issue of a treaty to protect the rights of broadcasters in the second quarter of 2006. A special session of the Standing Committee on Copyrights and Related Rights would precede it in November.

The general argument for the treaty is that broadcasters’ rights need to be updated to reflect technological advances and protect against signal theft. A variety of opponents fear such protection would steal from the public domain or give new rights to broadcasters at the expense of others. Some groups also fear a U.S. proposal on webcasting might find a way back into discussion after being sidelined late last year.

The broadcasting issue, about which there are some 16 proposals, has been hotly contested this year for procedural reasons. The issue was discussed at a meeting of the Standing Committee on Copyrights and Related Rights in November 2004 and several developing countries were outraged that the proposal moved forward after the meeting despite clear opposition in the meeting. Proposals are subject to consensus approval in WIPO.

WIPO organised six regional meetings between May and July. A seventh meeting, for the Group B industrialised nations, was held in mid-September in Brussels. The consultations have been criticised by several key WIPO members as not transparent nor inclusive. They also have been seen as a way to get the negotiation out of Geneva in order to break up its main opposition, which runs cross-regionally. In addition, it is unusual for WIPO not to hold a second SCCR between General Assemblies. In its report on the first six consultations, WIPO said 75 member states (out of 180) attended them and that conclusions were adopted at them expressing the opinion that a diplomatic conference should be convened as soon as possible.

Program And Budget And Scandal

Perhaps the most fundamental questions before the General Assemblies are those of WIPO’s past performance and future mandate, and the accompanying financing. WIPO in recent years has been a major money-maker, but the Program and Budget Committee this year acknowledged the turn in its fortunes and prescribed a flat budget.

Underlying everything that went on at WIPO this year was the rumour and concern about possible financial and administrative mismanagement reaching the highest levels. There have been rising concerns among its developing country members that meetings are not being conducted fairly to them nor according to WIPO rules. In addition, member states of all sizes have questioned WIPO’s handling of informal charges of financial improprieties.

The General Assemblies will address a report by the U.N. Joint Inspection Unit that found a number of problems with WIPO’s budget and personnel practices. The assemblies also will consider a recommendation from a Program and Budget Committee working group to establish an independent audit function for the U.N. body, in order to increase accountability. A concern by some members about the recommendation is that it gives a significant role in the audit function to the WIPO leadership, which they fear could undermine its independence and effectiveness.

Other Key Issues

Another key issue of the week is the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, which is of vital importance to developing countries. The so-called IGC’s work is tied to many other areas. The committee, which has a long and involved history, in June recommended to the General Assembly that it be continued for two more years.

Also on the table is a 2004 decision by the General Assembly to agree to an invitation to examine the Convention on Biological Diversity for the interrelation of access to genetic resources and disclosure requirements in the use of intellectual property rights.

Other important agenda items are the protection of audiovisual performances, a diplomatic conference for the adoption of a revised trademark law treaty, the work of the Advisory Committee on Enforcement, the Patent Cooperation Treaty, and Internet domain names.