Naming DG Tops List Of Policy, Administrative Issues For WIPO Assembly

By William New
The 2008 annual assemblies of the World Intellectual Property Organization likely will be remembered for some time, as the choices member governments make there this week may have a profound effect on the future of the United Nations organisation.

Topping the list is the appointment of a new WIPO director general, who with member states will set the spirit and course of the flagging organisation, followed by key reports of auditors and an implementation report from the ground-breaking Committee on Development (CDIP) and Intellectual Property created last year.

Other key committees stand to be charged with powerful new mandates after a mild year in which policy was subordinate to politics in the organisation. Those committees include the Standing Committee on Copyright and Related Rights (SCCR), the Advisory Committee on Enforcement (ACE), the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and the Standing Committee on the Law of Patents (SCP).

The WIPO assemblies run from 22 to 30 September with some 26 proposed agenda items. Number four on the draft agenda is appointment of the new director general, who is expected to take office on 1 October.

The appointment of director general could be a simple exercise of naming the nominee, WIPO veteran Francis Gurry, to the post with little aplomb, but there is a small chance that some members could try to force a vote, and an even smaller chance that that could lead to a new nomination process.

Gurry, a WIPO deputy director general in charge of patents and other matters and former general counsel under the departing WIPO director general, has sought to unify the divided WIPO over the summer. The divisions reflected the struggle by some developed countries to remove current Director General Kamil Idris, and the fact that Gurry won the nomination to succeed Idris by a one-vote margin. Some had initially expressed fear that Gurry’s election could set off a “witch hunt” to identify and punish those who might be seen as having worked against him or the organisation.

But Gurry told Intellectual Property Watch in June: “There will be no witch hunt.” He praised the staff as professional, and said they would be treated that way. “There is no spirit of revenge,” an official said over the summer.

Gurry also said he made very few promises to members in exchange for their support in the nomination process. This may give him more flexibility in assembling his cabinet if he is appointed, though he inherits a slight complication.

Normally, any new leader appoints or is appointed a new cabinet. But since Idris is stepping down one year before the end of the six-year term, his existing cabinet had contracts to 30 November 2009. There likely will be internal transfers within WIPO of some people and duties as a result. Also, Idris negotiated to be paid to the end of his contract, which will require some reworking of the budget to pay two directors general for 14 months.

A copy of a letter to Idris from WIPO General Assembly chairman Martin Uhomoibdi obtained by Intellectual Property Watch states the fact that Idris will hand over his office on 1 October and WIPO will honour his full contract, including salary, pension and entitlements until 30 November 2009. Uhomoibdi said this arrangement reflects “prevailing practice” in intergovernmental institutions. “It would also reflect accurately the intention of the WIPO General Assembly when it appoints a new director general in September 2008,” he said. Government sources said last week that a committee is expected to be formed this week to draft Gurry’s contract.

Idris’ contract from 25 June 2003 assured him the highest annual net salary payable to the head of a UN specialised agency, plus an annual “representation allowance” of CHF58,200, an annual housing allowance of CHF71,400, a car and driver, security protection, and participation in the UN pension fund. These issues and others, such as the ongoing construction of a large new office building connected to the main headquarters, will be discussed in the context of the budget this week.

Polishing the Policy Committees

Meanwhile, members will devote attention to generating important new missions for the policymaking bodies.

The SCCR may lead off by debating a possible treaty on limitations and exceptions to copyright, such as for libraries or handicapped users. But some countries may be preparing other ideas to compete for the agenda.

The enforcement committee has been strictly a non-negotiating body, but recent efforts by developed countries – who own most of the world’s intellectual property – to pursue stronger protection and enforcement outside WIPO has contributed to an interest by other members in centralising the discussion back in WIPO.

The IGC will report on its progress in the middle of a two-year mandate, and could be a focal point for discussion about some developing countries’ wishes to better protect traditional knowledge and genetic resources, including a long-time call for negotiation of a treaty or other instrument on this issue. Indigenous groups have been unable to trust the patent system to keep them from losing their age-old practices.

The SCP will consider ideas for a new work programme that dances lightly around the harmonisation negotiations developed countries want to reinvigorate.

Let the Healing Begin

After the nomination, some feared that instead of the organisational “healing” many have sought, there would be an exacerbation of WIPO’s internal problems because Gurry was so close to everything that has happened in the organisation in recent years.

Some delegates also raised concern about heavy lobbying at the May Coordination Committee meeting that made the nomination from among a number of candidates, and that the closeness of the outcome would mean Gurry would not have the political mandate necessary to overcome the differences in the organisation.

Anxieties were fanned further when at the time of his nomination, earlier anonymous letters surfaced accusing Gurry and his spouse of unsubstantiated unscrupulous dealings. Gurry worked vigorously to track the source of the letters, engaging law enforcement and using pressure on journalists to limit publication and discussion of the possibly defamatory letters. (The source of the letters, copies of which were obtained earlier this year by Intellectual Property Watch, still has not been made public if it is known.)

An additional underlying factor is that some feel there is a need to investigate past dealings of WIPO officials to determine whether funds were misappropriated by some individuals, and put in place stronger measures to prevent such behaviour from happening in the future.

In the meantime, most WIPO members appear to have adjusted to the expectation of Gurry’s approval this week, though some are still considering raising concerns. Officials queried over the summer often said they prefer that WIPO move forward with Gurry, with the expectation that his leadership will put the organisation back on track and put to rest concerns within the global IP community. No one has questioned Gurry’s qualifications for the job, and many express hope that WIPO will enter a new era of heightened relevance and global leadership. At most, there is concern among some who have worked with him about his temper, which has been known to flare on occasion.

Developing countries may scrutinise his leadership especially carefully simply because of his developed-nation origins (Australia). Some said earlier they would like an objective analysis of the state of things at WIPO, reviewed by the assemblies.

According to government sources, any member has a right to call a vote, and if a vote is called, Gurry would have to win support of two-thirds of the assembly membership, some 120 votes out of more than 180 members. If he does not garner that support, the matter would return to the Coordination Committee. Also a seemingly minor technical issue was floated that he needed a simple majority plus one vote, in which case he actually would have required 42 and a half votes to win the 83-member Coordination Committee. [Editor’s note: the assertion of an extra vote needed was not verified.]

“He is not walking on safe waters,” a developing country official said after the nomination in May. But maybe things have changed.

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