Annual WIPO Assembly Faces Sensitive Policy, Administrative Issues

By William New
The top decision-makers of the many organs of the World Intellectual Property Organization gather this week with a long list of important issues before them, ranging from new treaties and new IP policies to greater accountability and ways to prevent wrong-doing in its administration.

The agenda for the 25 September to 3 October WIPO annual assemblies well reflect this moment in WIPO’s history, as it looks ahead for its policy-making purpose and tries to improve upon possible administrative mistakes of the past. The WIPO General Assembly is the highest-level annual meeting of member governments, typically at the ministerial level. They address basic issues but in a highly political context that can create informal ties between issues.

WIPO sees its mission as helping to set a global environment for creativity and innovation, and for the protection of those innovations once rights are placed upon them. But with the rapid rise of intellectual property worldwide, the organisation’s focus has broadened. It also has found itself with administrative concerns possibly to be expected in a fast-growing, revenue-rich United Nations agency.

The assembly will hear updates on touchy investigations, accountability and greater transparency, a large-scale new building construction project, a new mechanism for increasing member government involvement in WIPO’s budget-making, and personnel issues. [Editor’s Note: administrative issues will be addressed in a related story to follow]

On the policy front, talks on a development agenda, patent harmonisation, and rules for genetic resources, traditional knowledge and folklore all stalled during the year. The only area of movement came in the recommendation to move to a formal negotiation of a broadcasters’ rights treaty in 2007. It will be up the assembly to decide what moves forward and how.

Development Agenda Talks Appear Likely to Continue

For the past two years, WIPO members have intensely discussed a proposal by 14 (now 15) Friends of Development, led by Brazil and Argentina, to ensure WIPO activities are sufficiently beneficial to developing countries. The 2005 General Assembly created a Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA) to conduct an accelerated review of all proposals and make recommendations.

But two meetings of the PCDA, in February and June, were inconclusive and a decision on how to proceed is left to the assembly. A very brief PCDA meeting on 18 September adopted the report of the June session. Several sources said expectations are that the issue will continue to be discussed at WIPO in the coming year.

Development agenda proponents said afterward they thought the substance of the original proposal remained intact, and opponents said both sides remain committed to continuing work on the issue. A key difference has been on where within WIPO to handle the development debate. While agenda proponents see a need to infuse a development dimension across many activities of the organization, WIPO argues that it has always had a development dimension, and opponents such as the United States appears to prefer to address the issue in an existing, dedicated committee. But development agenda proponents are wary of parking the issue in a single committee where they fear it will be marginalised.

The South Centre, a Geneva-based intergovernmental organisation, in a paper distributed to developing countries at the start of the assemblies and obtained by Intellectual Property Watch, lays out key questions for governments. In the paper, the group especially highlights the importance of the development agenda to developing countries, and makes a proposal for governments to establish a development agenda. The South Centre noted that the 2005 assembly established the PCDA “to make progress in integrating the development dimension in WIPO broadly so that concrete and practical results can be achieved in the most timely and efficient manner.”

Patent Harmonisation at a Crossroads

A key issue for developed countries at WIPO, which makes for a handy potential trade-off with development issues or with biodiversity issues (as suggested by India), is a long-standing effort to further harmonise global patent laws. But while significant discussion was held, such as in a special forum in March, differences could not be overcome. After deep disagreement over a committee work plan in an informal meeting of the Standing Committee on Patents (SCP), plans for a formal SCP meeting were scrapped.

The United States and Japan, with some support from other developed countries, are seeking to move ahead first on the basis of four areas in patent examination: prior art, grace period, novelty and inventive step.

But key developing countries have asked that issues of importance to them be included in the negotiation at the same time. They sought to include nine additional issues: development and policy space for flexibilities; exclusions from patentability; exceptions to patent rights; anti-competitive practices; disclosure of origin, prior informed consent and benefit-sharing; effective mechanisms to challenge patent validity; sufficiency of disclosure; technology transfer; and alternative models for promoting innovation.

There were several attempts to bridge gaps in proposals, and afterward some governments said the delay might allow more reflection on the issue. The assembly will consider an SCP work plan for 2007. A possible key issue in the coming year will be the expected heavy lobbying campaign and debate in the US Congress over a bill to reform US patent laws and bring them more in line with the rest of the world.

Biodiversity/Traditional Knowledge Committee Seeks to Break Traditional Impasse

This committee, seen as essential to some developing countries but also a source of frustration for them, is in the mid-point of a two-year mandate set by the 2005 assembly. In its April meeting, the committee ran aground over future work, debating whether it should address potentially legally binding text before it completed work on basic objectives and principles.

Written comments on traditional knowledge and folklore were to be submitted by 31 July, but it was undecided how the comments would be treated. Brazil, South Africa and others hope work will lead to a legally binding instrument for the protection of those areas, but Japan, the United States and others resisted until a foundation of principles and objectives can be completed. The group also approved a voluntary fund for indigenous groups. The next meeting is scheduled for 30 November to 8 December, followed by a final meeting in mid-2007.

Shall WIPO Have a Broadcasting Treaty?

Perhaps WIPO’s leading light in this week’s assembly is the Standing Committee on Copyrights and Related Rights recommendation to convene a diplomatic conference, or full, finite negotiation on a broadcasters’ rights treaty. But there are sincere reservations of some delegations over whether the draft basic proposal represents a good basis for proceeding. The committee recommended another meeting in January to address concerns before a three-week negotiation in the summer.

Brigid Quinn, a US Patent and Trademark Office spokeswoman, said afterward, “The US does not believe that SCCR 15/2 provides a proper basis for going to a diplomatic conference and intervened to say as much. Now, the US will do as much as it can to try to reach consensus on the numerous items in that draft where there is no consensus.” Quinn said the United States is displeased at the absence of protections for webcasters and simulcasters in the treaty. The treaty would cover traditional broadcasting, cablecasting and satellite-casting but not if unauthorised retransmissions of those signals are sent over the Internet.

“The US has always envisioned this Treaty as one to provide the necessary protections for broadcast signals in the digital age,” Quinn said.

WIPO’s Future Work to Revive Audiovisual Treaty, Bolster Enforcement

Separately, the assembly also will be asked to consider the renewal again of discussions about a treaty on the rights of performers in their audiovisual performances. A diplomatic conference on the issue in 2000 failed to reach agreement. In 2005, WIPO Director General Kamil Idris held informal consultations with member states and key private-sector stakeholders, according to WIPO. Now, Idris recommends to hold national or regional seminars on the issue in 2007.

The assembly also will hear a recommendation from the Advisory Committee on Enforcement to continue its work on combating counterfeiting and piracy, including through an exchange of views on coordination with other agencies at all levels. Enforcement appears to be rising in importance for WIPO, and the committee chair’s report said some called for a “holistic strategic approach to enforcement matters.” The chair listed proposals from all sides, including a call for more statistics, cost-benefit analyses, societal interests, and experiences with bio-piracy.

In addition, it will hear from the results of the diplomatic conference last spring updating the WIPO trademark law treaty.

Internet Domain Name Disputes Still on the Rise

Another busy area for WIPO is its Uniform Domain Name Dispute Resolution Policy (UDRP), which arbitrates cases of bad-faith, abusive registration and use of Internet names under the generic top-level domains such as .com, .org, .net, .info and .biz. The UDRP centre saw a 20 percent increase in activity in 2005, which continued in the first half of 2006 at an average filing rate of about 4.5 new cases per calendar day, according to WIPO.

Since 1999, the WIPO centre has administered more than 9,000 case involving over 17,000 domain names. They have involved parties from 131 countries and have been conducted in 12 different languages. The domain name panellists deciding cases come from 55 countries across the world. The centre also has begun helping with dispute resolution for holders of country-code top-level domains, such as .ch for Switzerland or .uk for the United Kingdom.

One sore spot has been getting the compliance on UDRP updates by the Internet Corporation for Assigned Names and Numbers (ICANN), a California-based international non-profit managing technical aspects of the Internet domain name system. ICANN has not been able to muster consensus on a reply to recommendations to modify the UDRP made by the 2002 WIPO General Assembly, and it does not appear likely to do so soon despite complaints by some member states at the 2005 assembly conveyed to ICANN, WIPO said.

The assemblies also involve the WIPO Coordination Committee, which will approve new appointments, among other things, and the leadership of each of WIPO’s treaties.

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