WIPO Assembly Closes On Cooperative But Serious Note

By William New
The 2006 annual assemblies of the World Intellectual Property Organization ended on 3 October with a somewhat rare spirit of cooperation and some stiff reminders about the policy and administrative work to be done in the coming year.

WIPO’s 183 members in the 25 September to 3 October General Assembly reached agreement on politically tough issues such as a proposed broadcasting treaty, global patent harmonisation, and an agenda for development at the organisation. But in fact, the agreements they reached were mainly compromises on ways to continue discussing deep differences that lie in all three of these areas (IPW. WIPO, 30 September 2006).

WIPO Director General Kamil Idris emphasized the “successful outcome” of the assembly, and said he hoped the “good spirit of determination and commitment will prevail so that the organisation can face the challenges lying ahead.” General Assembly Chair Enrique Manalo, the Philippines ambassador in Geneva, urged members to “harness the spirit of hard work and cooperation” shown in the assembly for the coming year. He said members should agree to as many proposals as possible on the development agenda, work through problems in the broadcasting treaty proposal, and participate in consultations with him on a future work plan for the WIPO committee dealing with patent harmonisation.

Also in 2007, Manalo said, hard work will be needed to address WIPO’s biennial budget and the end of the two-year mandate of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.

Perhaps more seriously, member states during the week addressed their efforts to build in ever-stronger measures to increase their oversight of WIPO’s administrative and budgetary functions. WIPO still is under scrutiny from its members to implement recommendations made in 2005 by the UN Joint Inspection Unit (JIU). The JIU found problems with financial, personnel and oversight activities and made numerous suggestions (IPW, UN, 7 June 2005).

There also have been a number of news stories in the past two years, some unproven, about unusual behaviour at WIPO, including the awarding of an earlier building construction contract, a swimming pool for Director General Idris, 20 years of inaccurate reporting of Idris’ age at WIPO, allegations of favouritism in contracts to provide health care to WIPO employees, and committee chairs who do not follow the rules of procedure. And more rumours are circulating around the building.

An independent review of WIPO’s management practices by consulting firm Ernst and Young in December 2005 found no evidence of wrongdoing, but said that widespread allegations of fraud in recent years could have occurred, and made recommendations for improvements. At that time, some developed countries vowed to keep pursuing the matter.

Members at the assembly stressed the importance of the Internal Audit and Oversight Division and the new Audit Committee’s impartial work in monitoring personnel and financial matters while reporting to the larger Programme and Budget Committee.

Following problems with a lack of transparent and proper UN processes in hiring at WIPO as identified by the JIU, member states last year asked WIPO to conduct a “desk-to-desk” review of jobs. This is expected to begin this autumn, according to assembly documents.

During the assembly, Group B (developed countries) put forward additional requirements for the WIPO secretariat aimed at further strengthening accountability. The proposal that was ultimately adopted requests the secretariat to seek Joint Inspection Unit views on the implementation of JIU recommendations; work with member states on the desk-to-desk review and review of WIPO human resources policies and practices; and convene an open-ended working group of the Program and Budget Committee to review the Audit Committee’s terms of reference and funding, as well as the WIPO Internal Audit Charter.

“It’s a way to ensure we do the fine-tuning” to improve the accountability of the organization, a developed country official said. On these issues, WIPO has been moving “in the right direction,” but still has further to go, the official said.

Construction to Begin in 2008?

The assembly also took note of an update on the planned construction of a large new building adjacent to WIPO headquarters. In their statements, some delegates grimaced at the delay of the start date and increased cost of construction, but all accepted it. The selection of a company to lead the construction work is being subjected to several layers of evaluation. The construction timeline now has been moved from the April 2007 to June 2009 period to the February 2008 to April 2010 period, according to assembly documents. Estimated costs will have to be reassessed as a result.

Former senior WIPO Assistant Director General Khamis Suedi returned as a member of the Tanzanian delegation and according to assembly documents remarked on there was “irony” that Group B countries in the past referred to the Joint Inspection Unit as a “useless outfit” but that now it had become “useful.” It may also be ironic that Suedi, a former special counsel to Idris who quietly stepped down in early 2005, was involved in a federal investigation in Switzerland (the Group B chair, ironically) for receiving nearly $300,000 that was thought might have been related to the selection of a company for a multi-million dollar construction project at WIPO (IPW, UN, 7 June 2005). Suedi was called to testify in the federal case involving UN contracts but was not found guilty of wrongdoing.

Attempts to Add Accountability to Desk to Desk Review

During the week, the WIPO Staff Council made a statement to the assembly citing “uncertainty, instability and inequality of treatment” of short-term contract workers at the organisation, who represent about 25 percent of staff. They said the arrangement undermines the internal justice system “since some colleagues, fearing for the renewal of their contracts, feel unable to speak out.” The council president acknowledged the “difficult year” ahead with the pending desk-to-desk review due by next summer, but argued for progress on the short-term contractual issues.

At the close of the meeting, a series of key developed and developing countries voiced their desire for the chair to consider further ways to increase member oversight of WIPO, especially citing support for a United Kingdom statement calling for a “credible and competent desk-to-desk review” of WIPO jobs. The United Kingdom on 2 October sought to make a proposal on the issue out of concern about the process for selecting the firm to conduct the review. WIPO’s hiring practices have been questioned in the past, as has the number of new staff it hired during its rapid build-up in recent years. Progress on the review has been slow. But the UK proposal was put off on procedural grounds, as it was filed too late in the nine-day meeting.

The UK proposal stated: “The General Assembly requests the Secretariat:

1. By end October set up an external selection committee, modelled on the committee used for the WIPO Construction Project (i.e. comprising two ambassador level co-chairs plus one representative of each WIPO regional group) to provide a transparent and credible process for the selection of a consultant for the WIPO Desk to Desk Review.

2. To hold in December, at the end of the ‘Organising and Planning’ phase of the Desk to Desk Review, an informal session of the Program and Budget Committee, as foreseen in Document PCD/06/033 (Timeline of the Desk to Desk Review). The Secretariat must also invite the WIPO Audit Committee, the consultants carrying out the Desk to Desk Review and the WIPO Steering Committee to join this Meeting. This will allow an opportunity for open consideration of the planned ‘Assessment of the Current Organisation’ before it commences.“

Japan, Canada, Italy, the United States, Argentina, and Brazil supported the UK statement.

FAO, IDB Agreements Suspended

The Brazilian delegate said he hoped the assembly chair would consider other ways to increase member involvement in WIPO functions. Brazil led the resistance (which included Bolivia among others) to the approval of proposed agreements negotiated by the WIPO secretariat with the Food and Agriculture Organization and the Inter-American Development Bank. The concern was that WIPO member states would not have a sufficient role in setting the work plan and that the WIPO’s approach to intellectual property might be contrary to the missions of the other organisations which are oriented toward access to nutrition and social and economic development (IPW, WIPO, 1 October 2006).

WIPO Patent Harmonisation on Hold in 2007

On patents, the members decided to give the years of difficult talks on harmonisation a rest for a year. At WIPO, there will be no formal meeting of the Standing Committee on the Law of Patents, but instead consultations in the first half of 2007 with the General Assembly chair. Manalo will send a recommendation to next year’s assembly, which will try to set a work plan for 2008 and 2009. (for text of agreement see: IPW, WIPO, 30 September 2006).

The focus on patent harmonisation will occur outside WIPO, with developed countries working to narrow differences in their rules in four areas. Those nations, now referred to as Group B-plus (as it encompasses WIPO’s Group B developed countries and a few others who belong to the European Patent Organization), will meet in Tokyo in November and in Washington in the spring 2007.

Development Agenda Marches On

Members extended the mandate of the provisional committee on proposals related to a WIPO development agenda for at least another year, with two five-day meetings in 2007. The meetings will address 111 proposals put forward in 2004 and 2005, beginning with 40 proposed by the Kyrgyz Republic (for text of agreement see: IPW, WIPO, 30 September 2006).

An official from Brazil, one of the originators of the proposal by Friends of Development to ensure that WIPO activities fully take developing country concerns into account, called the development agenda outcome “positive” as all proposals will be addressed equally. A US official also seemed upbeat, as the process would help ensure decisions are made on proposals and discussion would not continue indefinitely. The United States generally joins WIPO in saying that the organisation always has worked for development, and that promoting intellectual property rights boosts development, but acknowledges that improvements in the process may be possible.

Broadcasting Outcome Leaves Door Open to Pact Next Year

On broadcasting, it was agreed that a diplomatic conference, or formal treaty negotiation, would be convened in late 2007, if major disagreements are resolved in two special meetings of the WIPO copyright committee in January and June 2007.

The agreement reached on the proposal to hold a diplomatic conference next year on stronger rights for broadcasters reflected some compromise and has an escape clause in case major remaining differences cannot be bridged during the year leading up to it. Paragraph four of the agreement below states: “The diplomatic conference will be convened if such agreement is achieved.”

Many countries have raised concerns with the text of the draft basic proposal that would form the basis of further discussions. The recommendation to proceed to a diplomatic conference was slipped through the Standing Committee on Copyrights and Related Rights by Chairman Jukka Liedes despite complaints by some countries like the United States and India (IPW, Broadcasting, 9 September 2006).

The assembly agreement on broadcasting states that if there is no agreement to continue, the discussion would revert back to the draft proposal on which there was no agreement. India suggested to the assembly that if there is no agreement, perhaps any progress that was made during the year could be included.

The broadcasting industry had a long week of following the negotiations, with the outcome unresolved until the end. They also suffered the loss of one of their own, Moira Burnett of the European Broadcasting Union (www.ebu.ch), on the second day of the assembly. Europe is a key driver for the broadcasting treaty, and negotiations regularly involved Tilman Lueder, who is in charge of copyright and knowledge economy at the European Commission.

The industry appeared satisfied to have come away with a commitment to negotiate next year, despite the conditions placed on it. “I think the broadcasters are pleased that the General Assembly approved the convening of a diplomatic conference, and set specific dates of November 19 to December 7, 2007,” Ben Ivins of the U.S. National Association of Broadcasters said in an interview. “Broadcasters have been working toward the convening of this conference for almost nine years, and the need for updating the rights of broadcasters in the digital age increases daily.”

“While there are a number of issues still confronting successful conclusion of the treaty, broadcasters are confident that many can be dealt with during the January and June 2007 [copyright committee] sessions, and those still remaining can be resolved during the diplomatic conference itself,” Ivins added.

On webcasting, Ivins said, “broadcasters are not opposed to the protection of any technology that has demonstrated a need for protection at the international level. But to the extent that the continued inclusion of webcasting or netcasting [as the US has referred to it] would result in delaying the conclusion of a traditional broadcasting treaty or diminish rights or protections that would be in a traditional broadcast treaty, that becomes problematic for us.” Broadcasters have said a distinction should be made between protection of the broadcast signal and protection of the broadcast content.

Technology industries and consumer and civil liberties groups have raised significant concerns with the draft broadcasting treaty proposal, and were pleased with the outcome. Some of the groups include: Consumer Project on Technology, Electronic Frontier Foundation, Free Software Foundation Europe, International Federation of Library Associations and IP Justice. An industry statement in opposing the draft proposal filed at the assembly was signed by 16 mainly US-based global technology companies and trade associations.

New and Old Faces, Audiovisual Treaty, Domain Names

The assembly thanked outgoing deputy directors general Rita Hayes (US, copyright and related rights) and Geoffrey Yu (Singapore, development), who will leave by 1 December. It was unclear what Hayes will do next. After many years at WIPO, Yu plans to return to Singapore, where he likely will work with the government. Newcomers Michael Keplinger (US, copyright position) and Narenda Sabharwal (India, development position) will join holdovers Philippe Petit (France, general affairs and administration) and Francis Gurry (Australia, patents and arbitration centre). Officials from China, Nigeria and Uruguay will hold assistant director general positions (IPW, WIPO, 1 June 2006).

The developed countries hold three out of four deputy positions despite the fact that they typically speak with one voice at WIPO through the non-regional Group B. All positions are from 1 December 2006 to 30 November 2009, the year Idris’ contract expires.

On other policy matters, the members agreed to keep consulting for another year on a possible treaty on the protection of audiovisual performances, and heard from the advisory committee on enforcement, which is working against piracy and counterfeiting. The members also heard an update of the WIPO Uniform Domain Name Resolution Policy (UDRP), which arbitrates a rapidly rising number of disputes over Internet addresses. The centre has begun helping resolve cases for holders of international organization domains and domains for specific countries, such as .ch for Switzerland. No government complained about the fact that the Internet Corporation for Assigned Names and Numbers still has not responded to a four-year-old request for input on modifying the UDRP.

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

Broadcasting Agreement Text:

ITEM 10: PROTECTION OF BROADCASTING ORGANIZATIONS

Draft Decision

Outcome from the informal consultations, September 27-30, 2006,

Prepared by the Chairman of the SCCR

1. The General Assembly approves the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations under the conditions set out in paragraph 4 below from November 19 to December 7, 2007, in Geneva. The objective of this Conference is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations. The scope of the treaty will be confined to the protection of broadcasting and cablecasting organizations in the traditional sense.

2. The Revised Draft Basic Proposal (Document SCCR/15/2) will constitute the Basic Proposal with the understanding that all Member States may make proposals at the Diplomatic Conference.

3. The meeting of a preparatory committee will be convened for June 2007 to prepare the necessary modalities of the Diplomatic Conference. The preparatory committee will consider the draft rules of procedure to be presented for adoption to the Diplomatic Conference, the lists of States, as well as intergovernmental and non-governmental organizations to be invited to participate in the conference, as well as other necessary organizational matters.

4. Two special sessions of the Standing Committee on Copyright and Related Rights to clarify the outstanding issues will be convened, the first one in January 2007, and the second one in June 2007 in conjunction with the meeting of the preparatory committee. It is understood that the sessions of the SCCR should aim to agree and finalize, on a signal-based approach, the objectives, specific scope and object of protection with a view to submitting to the Diplomatic Conference a revised basic proposal, which will amend the agreed relevant parts of the Revised Draft Basic Proposal referred to in Paragraph 2. The Diplomatic Conference will be convened if such agreement is achieved. If no such agreement is achieved, all further discussions will be based on Document SCCR/15/2.

5. The WIPO Secretariat will organize, in cooperation with the Member States concerned, and at the request of Member States, consultations and information meetings on the matters of the Diplomatic Conference. The meetings will be hosted by the inviting Member States.

6. The General Assembly is invited to approve the convening of the Diplomatic Conference on the Protection of the Rights of Broadcasting Organizations, from November 19 to December 7, 2007, and its preparatory arrangements as recommended by the fifteenth session of the SCCR and as amended above.