The WIPO General Assembly (GA) that begins on Monday (25 September) will have to make tough decisions on several issues that have seriously divided WIPO members in recent years, often along North-South lines.
The three areas of most contention are the work plan for WIPO's patent committee; the direction and future of the WIPO Development Agenda initiative; and a decision on convening a diplomatic conference to finalize negotiations on a new treaty on the protection of broadcasting and cablecasting organizations.
The first issue is how WIPO should move ahead on its work on patents. An informal session of WIPO's Standing Committee on Patents (SCP) held on 10-12 April collapsed as WIPO members were unable to agree to a work programme for the ordinary session of the SCP.
As a result of this impasse, the ordinary session was never held and the GA will have to make the decisions, especially on whether and how to move ahead with the proposed substantive patent law treaty (SPLT), which is at the heart of the contention about WIPO's work in the SCP.
Two meetings on the WIPO Development Agenda (in February and June 2006) also saw WIPO members unable to reach agreement on how to move forward with the numerous proposals related to the Agenda. As a result, no recommendations are being presented to the GA and the Assembly will have to make the decisions on whether and how to go forward.
Another issue that the GA will have to determine is on the convening of a diplomatic conference to finalize negotiations on a new treaty for the protection of broadcasting organizations.
Following a meeting on 11-13 September, WIPO's Standing Committee on Copyright and Related Rights (SCCR), after years of discussion, is putting forward a recommendation for the convening of a diplomatic conference from 11 July-1 August 2007 on the protection of broadcasting organizations.
The draft text that will form the basis of the diplomatic conference is the Revised Draft Basic Proposal (SCCR/15/2) prepared by the Chairman, Jukka Liedes from Finland, with the cooperation of the Secretariat. However, many delegations do not think that the proposal bridges some deep differences sufficiently to warrant a diplomatic conference on that basis, and they could voice their views at the GA.
These three issues - patents, the Development Agenda and a possible diplomatic conference on the protection of broadcasting organizations - dominated discussions at last year's GA. It was only after many days of intense negotiations, mostly in small informal settings, that compromises were reached. The debate will continue at this year's Assembly.
WIPO Development Agenda: The WIPO Development Agenda was an outcome of the 2004 GA. It was proposed by 14 developing countries (Brazil, Argentina, Bolivia, Cuba, Dominican Republic, Ecuador, Egypt, Iran, Kenya, Peru, Sierra Leone, South Africa, Tanzania, and Venezuela) now known as the Group of Friends of Development (GFOD).
Their aim was to ensure that "WIPO activities and IP discussions are driven towards development-oriented results" and to ultimately mainstream the "development dimension" in all WIPO's activities.
The GFOD initiative has gained the widespread support of developing countries as well as civil society organizations, but continues to face resistance from developed countries, in particular, the US and Japan.
To take the WIPO Development Agenda forward, the 2004 General Assembly established the Inter-sessional Inter-governmental Meetings (IIMs).
During the IIMs, several developed countries were keen to narrow and limit the proposed development agenda to just a matter of technical assistance. At the 2005 General Assembly, even the renewal of the mandate of the IIMs became a sticking point as several developed countries were intent on ensuring that the mandate was not renewed, and if discussions on the Development Agenda had to take place, it should be in an existing WIPO body (PCIPD) dealing with technical assistance.
In the end, the 2005 GA decided to set up a PCDA (Provisional Committee on Proposals Related to a WIPO Development Agenda) to take forward the process and report recommendations to the 2006 GA.
The PCDA has met twice, in February and June 2006. The first meeting of the PCDA identified a total of 111 proposals from papers submitted on the Establishment of a Development Agenda in WIPO and placed them in six clusters: (A) Technical assistance and capacity building; (B) Norm-setting, flexibilities, public policy and public domain; ( C) Technology transfer, information and communication technology and access to knowledge; (D) Assessment, Evaluation and Impact Studies; (E) Institutional matters including mandate and governance; and (F) Other Issues.
According to a summary of the meeting by the Chairperson, Ambassador Rigoberto Gauto Vielman of Paraguay, the clusters with the proposals would "form the basis for discussions" at the second PCDA meeting.
Discussions continued at the second PCDA meeting in June 2006, but the meeting failed to come up with any recommendations for the 2006 GA to consider on how the Agenda should proceed. The only agreement that was reached was to transmit the official reports of the PCDA meetings and other official documents that have been discussed to the GA.
During the second PCDA, several approaches were discussed on how to deal with the 111 proposals. The GFOD submitted a draft Decision which the group had hoped would be the basis for this week's discussions. The paper summarised many of the proposals in earlier GFOD papers, and incorporated some proposals made earlier by other delegations.
Later at the meeting, the Chair tabled a paper with his own approach but this approach was met with strong protest, in particular, from the GFOD. The Chair's paper claimed that the proposals in it "received emerging consensus support during the PCDA process". It listed certain selected proposals under each of the abovementioned clusters.
According to analyses by several NGOs, the Chair's paper mainly reflected proposals by the US and the EU and some elements of the Africa Group's paper, but excluded many of the crucial proposals of the GFOD, which are the main initiators and proponents of the Development Agenda (DA).
The Chair's paper was firmly rejected by the GFOD and several other delegations. The GFOD was unwilling to negotiate on a paper that it thought undermined the DA and indicated its preference to bring the battle of the future of the DA to the GA.
The rejected Chair's paper, in a surprising turn of events in the final moments of the meeting, was adopted by the Republic of Kyrgyz and presented as its own proposal.
Group B (comprising developed countries) repeatedly endorsed the approach of the paper prepared by the Chair, which is now embodied in the proposal by the Kyrgyz Republic, and which now forms part of the official documents that will be presented to the 2006 GA. During the GA, Group B will most probably support the Kyrgyz Republic paper and insist that it be used as a starting point for discussions.
The main decision thus facing the WIPO GA will be how to move the Development Agenda forward. This will involve taking a decision about which forum will discuss the Development Agenda, the duration of the forum and the terms of reference of such a forum. The term of the PCDA ends at the GA.
If there is willingness to renew the term of the PCDA, then a longer duration should be sought with clear terms of reference as well as a mechanism on how the numerous proposals should be dealt with. Otherwise, the next couple of meetings of the PCDA (if its term is renewed) will be embroiled once again with dealing with procedural issues.
WIPO's Patent Work plan and the SPLT: The work of the SCP has generally been deadlocked for a number of years. The contention is on how to proceed with the negotiations on the Substantive Patent Law Treaty (SPLT).
Developed countries want a two-stage process, with stage one being a conclusion of a treaty containing only the subjects of interest to them (such as clarifying the definitions of prior art, grace period, novelty and inventive step - essential aspects of patent examination and grant) while relegating other issues (which developing countries are insisting on, such as the inclusion in patent laws of a mandatory requirement in patent applications involving genetic resources for disclosure of source of origin and prior informed consent of the source countries) to a vague second stage.
Several developing countries reject such a selective process, and want all the issues (including theirs) to be discussed simultaneously and on an equal footing.
Last year's WIPO GA could not break the impasse. However, as a compromise, the Assembly decided on a four-step process: (1) that an informal open forum be held in Geneva in the first quarter of 2006 on all issues that have been raised in the draft of the SPLT or that Member States wish to include in the draft SPLT; (2) following that, a three-day informal session of the SCP will be held to agree on a work program for the SCP, taking into account the discussions of the open forum; (3) subsequently, an ordinary session of the SCP would be held for 5 days to commence work on the agreed work program of the SCP; (4) the 2006 WIPO General Assembly would then consider the progress made with a view to determining a work plan for the following year.
However, little progress has been made since the last GA. The open forum was held. But during the SCP informal session in April 2006, discussions on the work program of the ordinary session of the SCP collapsed. As a result, no meeting of the ordinary session was held to commence work.
The sticking point in the SCP is the draft Substantive Patent Law Treaty (SPLT). For many years there have been strong disagreements among WIPO Member States regarding the objectives, scope, the actual content and the impact of the SPLT, especially in developing countries.
The fear is that the proposed treaty will establish new binding international standards in critical areas of patent law so far left to the discretion of national legislation. In addition, it is anticipated that the main beneficiaries of such a system will be entities from the developed countries which are the primary users of the system as they will benefit from stronger, expansive rights with narrower limitations and exceptions to the exclusive rights granted by a patent.
Matters came to head when the US and Japan presented a proposal at the SCP's 10th Session in May 2004 that the SPLT work take on a limited agenda of an "initial package of priority items" i.e. the "definition of prior art, grace period, novelty and non obviousness/ inventive step" with the view of "concluding a more limited substantive patent law treaty as soon as possible".
Most developing countries saw this proposal as an attempt to highlight issues that benefit the developed countries, whilst sidelining issues of importance to the developing countries. Among the developing countries' issues was an amendment to patent laws to require that patent applications involving genetic resources and associated traditional knowledge must be accompanied by disclosure of the source of origin and evidence that the applicant had prior informed consent and had entered into a benefit-sharing arrangement with the countries of origin.
No consensus was achieved at that meeting, and the US and Japan re-submitted their paper at the 2004 WIPO GA, and again there could not be agreement on the proposal. The impasse had grown so wide on the future patents programme that the GA could not even decide on the next meeting of the SCP. The 2004 GA then decided that the dates of the next SCP "should be determined by the Director-General following informal consultations that he may undertake."
Following the Assembly decision, the WIPO Director-General Dr. Kamil Idris held a consultation in Casablanca. The outcome was a statement that six issues - "prior art, grace period, novelty, inventive step, sufficiency of disclosure and genetic resources" - be treated in an accelerated manner within WIPO, but with the first four issues addressed in the SCP, while the other two in the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), a Committee that has not shown any concrete outcomes since its establishment in 2001.
The Casablanca meeting came under severe criticism from many developing countries for the manner in which it was organized and for its substantive outcome. Noting that the consultation was convened by the Director- General in a manner beyond the mandate given by the GA, and that the participants were invited in their individual capacity, the developing countries (including the GFOD and India) criticized the non-transparent process and opposed the outcomes of the meeting.
At the 11th session of the SCP, the controversy over the Casablanca meeting contributed to the deadlock on the SCP work programme, a decision on which was then referred to the 2005 GA.
Subsequently, the GA could not come up with any substantive agreement and instead produced the four-point decision (see above).
In line with the GA decision, an open forum on the draft SPLT was held, with several speakers cautioning against the adoption of proposals for a treaty to harmonise patent policies based on developed-country norms.
At the informal SCP session in April 2006, the GFOD supported by other countries such as Pakistan proposed that 9 issues proposed by them be considered on an equal footing with the four issues proposed by the US and Japan. The nine issues were: 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 the validity of patents; sufficiency of disclosure; transfer of technology; and alternative models to promote innovation.
However, Group B (comprising the developed countries) took the position that discussing all issues (9 proposed by the GFOD and the 4 items proposed by the US and Japan) on an equal footing at the ordinary SCP session was not an option. Statements by Group B showed that unless there was agreement on a fast-tracked approach comprising the limited package of 4 issues of the US and Japan, they were not keen to move the SPLT process forward.
The April 2006 informal meeting ended with the Chairman stating that it was perhaps premature to move ahead with the SCP program, stressing the need to be clear as to whether it was better to suspend the process at the SCP for a while as it was not yet mature.
With no recommendation by the SCP itself to the GA on how its work is to proceed, it is now up to the GA again to discuss and decide on the issue of a work plan for the SCP. If Group B were to push forward a similar approach as it has done in the previous meetings, it is highly unlikely that there will be an agreement on the work-plan. Many developing countries have voiced their opposition to treating issues of concern to them on a slower parallel track.
There is also the possibility that Group B may not want to proceed on any discussion related to the SPLT and thus will not push for a "limited package" of issues as they have previously been doing.
In any case, it is an opportune time for developing countries to push forward patent-related concerns that are of interest to them onto WIPO's patent work plan. This would be in line with the vision of main-streaming the Development Agenda into all of WIPO's activities. An obvious start could be made by bringing up the 9 issues that the GFOD had already put forward at the informal SCP session. A general discussion could be undertaken on these issues, and if appropriate, de-linked from discussions on the draft SPLT.
Copyright and the Diplomatic Conference on Broadcasting Treaty: The third major issue for WIPO Members to consider at the GA will be the recommendation made by the 15th Session of the SCCR on the convening of a diplomatic conference on 11 July-1 August 2007 on the protection of broadcasting organizations.
According to a conclusion which was only orally presented by the Chair at the 15th SCCR meeting (held on 11-13 September), the objective of the diplomatic conference "is to negotiate and conclude a WIPO treaty on the protection of broadcasting organizations, including cablecasting organizations" and the scope "will be confined on the protection of broadcasting and cablecasting organizations in the traditional sense."
The conclusion further states that the Revised Draft Basic Proposal SCCR/15/2 will be the basic proposal for the conference "with the understanding that all delegations can make proposals at the diplomatic conference".
The Committee also recommended that a special two-day meeting be held to clarify outstanding issues in conjunction with a preparatory meeting that will be convened in January to prepare for the necessary modalities of the diplomatic conference.
At the last GA, despite the pressure on Members to recommend the convening of a diplomatic conference by the proponents of the proposed treaty, a decision was taken for "two more meetings of the SCCR" to be scheduled to finalise a Basic Proposal for a treaty. Since the 2005 GA, three meetings of the SCCR have taken place, the last being the 15th Session.
Discussions on a treaty for the protection of broadcasting organizations have been going on for over 8 years. A major sticking point in the previous meetings has been a proposal by the US to extend the scope of protection to include "webcasting".
However, due to strong objections, it was agreed at the 14th Session that the scope of the treaty would be limited to broadcasting and cable casting in the traditional sense. At the 15th Session, it was clear that there were still significant divergences among WIPO members even if the treaty did not address "webcasting".
Several developing countries repeatedly gave the view that much needed to be clarified in the basic proposal before it could be finalized for a diplomatic conference. The US also did not favour the convening of a diplomatic conference so soon as it felt that the basic proposal (SCCR/15/2) required more certainty.
The hesitance on the part of several delegations nevertheless did not prevent the Chairman of the Committee to push for a recommendation for a diplomatic conference, in line with the positions of the European Communities, Japan, Russia, Mexico, and El Salvador.
As a result, the GA will have before it a recommendation for the convening of a diplomatic conference on the basis of a basic proposal that many delegations are not satisfied with.
Some of the areas of concerns that have been raised by many developing countries in the past meetings as well as at the 15th session were: (1) the extension of the scope to include protection of transmission over computer networks in specific circumstances (although "webcasting" and "simulcasting" are excluded); (2) the exclusive rights approach taken by treaty; (3) the broad rights granted to broadcasters that goes beyond dealing with the problem of signal piracy; and (4) the inclusion of technological protection measures (TPMs).
These concerns arise from valid fears that the broad rights and scope proposed in the treaty will hinder access to knowledge and information and erode the public domain.
In addition, the repeated calls for impact assessment studies of the proposed treaty on access to knowledge and the public domain have not been heeded thus far.
For developing countries, the GA presents an opportunity to reopen the debate, and for not approving the convening of a diplomatic conference until all concerns and fears are sufficiently addressed.
Proponents of such a treaty may argue that during the "two-day meeting" recommended to be held by the SCCR, differences may still be ironed out.
While this may be the case, once the convening of a diplomatic conference is approved by the GA, there will be little incentive for countries to try and bridge differences until the diplomatic conference is convened.
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