[A2k] TWN Info: WIPO: Assemblies Discuss Critical Substantive Issues

Sangeeta ssangeeta at myjaring.net
Mon Oct 4 06:22:25 PDT 2010

Title : TWN IP Info: WIPO: Assemblies Discuss Critical Substantive Issues
 Date : 04 October 2010


TWN Info Service on Intellectual Property Issues (Oct10/02)
4 October 2010
Third World Network
www.twnside.org.sg <http://www.twnside.org.sg>

Dear Friends,
Below is a news report on discussions that took place on some of the
substantive issue during the WIPO General Assemblies.
Sangeeta Shashikant
SUNS #7008 Thursday 30 September 2010
WIPO: Assemblies Discuss Critical Substantive Issues
Geneva, 29 Sep (Sangeeta Shashikant and Heba Wanis) -- Compared to the usual
hectic and highly-charged Assemblies of the Member States of the World
Intellectual Property Organization (WIPO) of previous years, this year's
Assemblies, which conclude on 29 September, have passed with little or no
quarrel over the substantive issues.
The forty-eighth series of meetings of the WIPO Assemblies took place from
20-29 September. The theme for this year is "Innovation, Growth and
Development: the Role of IP and Member States' Experiences."
A reflection of developing countries' statements made during the General
Assembly and a close examination of proposals and outcomes on the critical
substantive items that have been debated throughout the year in WIPO have
revealed the dynamic involvement of developing countries in steering the
discussion, and persevering for development-oriented results in each of the
substantive WIPO committees.
In relation to the Development Agenda, after countless hours of informal
wrangling by developing countries with Group B (composed of developed
countries), the Committee on Development and IP (CDIP) adopted in April the
"Coordination Mechanisms and Monitoring, Assessing and Reporting
Modalities", a mechanism that provides a framework for monitoring and
evaluating the implementation of the Development Agenda. The WIPO General
Assembly approved the establishment of the mechanism.
The last CDIP session in April had also witnessed the emergence of the
"Development Agenda Group" (DAG), a new group of more than 18 like-minded
developing countries, armed with the commitment of mainstreaming development
considerations in WIPO.
At the WIPO General Assembly, speaking on the Development Agenda (DA),
Egypt, on behalf of the DAG, recalled that successful implementation of the
DA "requires sustained and multi-faceted approach to the range of activities
in WIPO; proactive leadership, continuous commitment, cooperation,
engagement and oversight by Member States; an enduring pro-development
cultural transformation within the WIPO Secretariat; a Member-State driven
organization; and engagement with other intergovernmental organizations and
civil society".
It also expressed the DAG's commitment to actively contribute to
mainstreaming the development dimension in all areas of WIPO's work,
highlighting that it is incumbent on Members to shoulder the burden of
proposing activities for implementation of the DA recommendations.
Egypt further said that it looked forward to fine-tuning the aspects
necessary for putting the agreed mechanism for monitoring and oversight of
the DA into action in order to begin the important task of monitoring and
oversight of the ever-expanding portfolio on the DA implementation. It
stressed that there was a need to embark on the third leg of the CDIP
mandate - i. e. discussing IP and development.
Egypt noted that WIPO's report on its contribution to the UN Millennium
Development Goals (MDGs), "did not assess or make an empirical evaluation of
WIPO's work on the MDGs".
Egypt also referred to the 2009 High-level Task Force on the Implementation
of the Right to Development, and its view of the WIPO Development Agenda as
"one of the most - and arguably the most - important of the current global
initiatives in advancing the realization of the right to development", and
reiterated the DAG's proposal that the Task Force be invited to the upcoming
sixth CDIP session to present its findings. Consultations are ongoing on
this matter, it added.
[At the April CDIP meeting, there were suggestions made to invite the UN
Special Rapporteurs on the Right to Food (Mr. Olivier de Schutter) and on
the Right of Everyone to the Enjoyment of the Highest Attainable Standard of
Physical and Mental Health (Mr. Anand Grover) to the next CDIP session to
present their reports on the linkages between intellectual property (IP) and
the right to food, and IP and the right to health. Consultations on this
matter are also ongoing. (See SUNS #6917 dated 4 May 2010.)]
Switzerland, on behalf of Group B, called for careful prioritisation of the
implementation of the DA projects, while the US expressed concern regarding
duplication of efforts at WIPO, at a time when resources are limited. It
added that Members should ensure that work done under the CDIP is not
duplicative with the work of other organisations.
The issue of exceptions and limitations to copyright (E&L) gained prominence
in the Copyright Committee since it was first put on the agenda in July 2008
following an initial proposal by Brazil, Chile, Nicaragua and Uruguay. Since
then, momentum has been building among developing countries for mandatory
minimum exceptions and limitations.
There is a proposal by Brazil, Ecuador and Paraguay before the Committee
relating to a WIPO Treaty for Improved Access for Blind, Visually Impaired
and other Reading Disabled Persons and a timetable for adoption of the
treaty, as well as a proposal submitted by the African Group on a Draft WIPO
Treaty on Exceptions and Limitations for the Disabled, Educational and
Research Institutions, Libraries and Archive Centres.
The US and the European Union (EU) have also submitted a Draft Consensus
Instrument and a Draft Joint Recommendation Concerning the Improved Access
to Works Protected by Copyright for Persons with a Print Disability,
primarily with the aim of moving forward on the matter with a non-binding
On the topic of copyright, Bangladesh, on behalf of the Asian Group, noted
during the General Assembly (GA) that the Secretariat's report on the work
of the Copyright Committee gives the impression that the last session of the
Standing Committee on Copyright and Related Rights (SCCR) had agreed to a
number of issues. [Paragraph 29 of the Secretariat's report (WO/GA/39/8 Rev)
invited the GA to take note of the information contained in the report and
"encourage the Standing Committee on Copyright and Related Rights to
continue its work regarding the issues reported on in this document"].
Bangladesh suggested a reformulation of paragraph 29 to "take note of the
information contained in this document while bearing in mind that there was
no agreed conclusion reached at the 20th session of the SCCR".
Supporting Bangladesh's suggestion, Brazil noted that the report did not
reflect the Committee's deliberations and lacked reference to a lack of
agreement or outcomes.
Bangladesh's proposal was agreed to by the Assemblies.
Egypt, speaking on behalf of the DAG, said that the on-going discussions in
the SCCR on E&L could "contribute to bringing about the much needed balance
between private IP rights and public use in the context of national public
policies and development goals".
Angola, speaking on behalf of the African Group, recognised the needs of
people with visual impairment, and supported the need for an international
legal instrument. It however noted that the key issue in dealing with E&L is
to find a balance between right-holders and users but also, at the same
time, a balance among the users themselves.
Concerning the solution to move forward on this impasse on E&L, it said that
a compromise could be found through a work programme or timetable for the
adoption of a WIPO treaty both for improved access for the blind and
visually-impaired, and for educational activities, libraries, archive
services and disabled people.
The Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC) gained the reputation of being a talk-shop, as
years of negotiations came to naught. At the 2009 GA, the resolve of
developing countries resulted in the IGC obtaining a strengthened mandate to
"undertake text-based negotiations with the objective of reaching agreement
on a text of an international legal instrument (or instruments) which will
ensure the effective protection" of GRTKF.
To accelerate the negotiations, developing countries, at the sixteenth IGC
session (May 2010), pushed for the establishment of an inter-sessional
working group (IWG). The first IWG session met on 19-23 July and focussed on
text pertaining to Traditional Cultural Expressions (TCEs).
As the GA considered the report on the IGC, developing countries once again
renewed their call for an international binding instrument on the protection
of GRTKF, albeit statements revealed a chasm between developed and
developing countries on the legal nature of the international instrument.
Some countries also stressed on more coherence between the negotiations in
the IGC and those taking place at other international fora such as the
Convention on Biological Diversity (CBD).
Angola, on behalf of the African Group, spoke on the need for an
international binding instrument(s) for the protection of GRTKF. It called
for "momentum and political will" for the IGC to fulfil its mandate and
present a "comprehensive negotiated text" to the WIPO General Assemblies in
2011. It added that the IWG should be focussed on developing convergence on
issues that may require more time and attention during the IGC negotiations.
Similarly, Egypt, speaking on behalf of the DAG, stressed on an
international binding instrument for the protection of GRTKF, adding that
effective protection would significantly contribute to the balancing of the
global IP system. It added that establishing informal drafting groups during
the IWG session dedicated to proposing an updated text on each cluster of
issues was successful in converging differences among experts.
South Africa said it was "time to intensify these negotiations", as the
Convention on Biological Diversity concludes its legally binding protocol on
Access and Benefit-Sharing (ABS) in October 2010, and so "WIPO must conclude
its negotiation next year so as to complement these processes" with a
legally binding instrument or instruments.
India underlined that the IGC discussions "should take cognisance of, and
not in any way prejudice developments taking place in other international
fora", such as deliberations on ABS in the CBD, and developments in the
TRIPS Council. "We need to work in close coordination with all these
bodies," it added.
Similarly, Brazil renewed its commitment to the IGC without prejudice to the
negotiations taking place at the World Trade Organization and the CBD on
ABS. Iran acknowledged the new momentum in the IGC's negotiations after a
decade of failure because of an unclear mandate, lack of focus and
unwillingness of some Member States. It suggested that the next IWG session
be dedicated to the issue of Traditional Knowledge (TK).
While going along with some work on text-based negotiations in the IGC, the
developed countries were clearly opposed to any notion of a binding
Belgium, on behalf of the EU, said that while positive results were achieved
in the IWG on TCEs, any international instrument or instruments to protect
GR (genetic resources), TK and TCEs should be "flexible, sufficiently clear
and non-binding". In this framework, as Belgium mentioned, the "legal and
technical analysis of the inter-sessional working groups will be of
particular relevance to ensure further progress in the work of the IGC".
The US warned that text-based negotiations did not suggest that the US'
red-lines regarding substantive issues have been altered, adding that it
remained concerned that any such instrument could have detrimental effects
on its creative industries, technology innovation and on the public domain.
Regarding the protection of genetic resources, the US said that the IGC had
not formulated clear objectives and thus no judgement could be made on the
need or appropriateness of such protection.
To the chagrin of developed countries, work on substantive patent law
harmonization has come to a halt in the Patents Committee, as a result of
concerns voiced by developing countries that such harmonization was not in
their developmental interest and that the Patents Committee should also
engage on issues that are in the interest of developing countries. In recent
sessions, the Patents Committee has been involved in discussing studies
prepared by the Secretariat over a range of issues.
The fourteenth session of the Standing Committee on Patents (SCP) in January
2010 considered a number of preliminary studies including on standards and
patents, exclusions from patentable subject matter, exceptions and
limitations to rights, client-attorney privilege and transfer of technology.
However, as the session could not reach agreement on the agenda of the
upcoming fifteenth SCP session (to be held from 11-15 October 2010), it was
decided that the work programme of the fifteenth session would be based on
the agenda of the previous session. The fifteenth session will also consider
studies conducted on exclusions, and E&L; and the proposal of Brazil on E&L,
presented in past sessions.
Brazil, referring to its submission on E&L, said that E&L was a vital area
to mainstream within the Committee, in light of the Development Agenda.
South Africa said that the Patents Committee should take into account the
different levels of development, and consider how countries could utilise
Iran said that Members should not lose sight of the link between the patent
agenda and public policy issues, adding that any undesirable secondary
implications that might arise from the evolving international patent system
should be discussed in the SCP. It further said that there were
circumstances when the patent system could impede the transfer and
dissemination of technologies, and thus the need to mainstream development
in the patents programme, particularly the DA recommendations on
norm-setting, flexibilities, public policy and public domain, as well as E&L
and exclusions to patentable subject matter.
Several developed countries called for resuming the efforts of harmonization
of substantive patent law in the Patents Committee.
On the issue of enforcement, the developing countries have been stressing
that IP enforcement should be in accordance with Recommendation No. 45 of
the Development Agenda, which states: "To approach intellectual property
enforcement in the context of broader societal interests and especially
development-oriented concerns, with a view that the protection and
enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination
of technology, to the mutual advantage of producers and users of
technological knowledge and in a manner conducive to social and economic
welfare, and to a balance of rights and obligations, in accordance with
Article 7 of the TRIPS Agreement."
To this end, Pakistan and Brazil, respectively, presented papers on
"Creating an enabling environment to build respect for IP" and on "Future
The sixth session of the Advisory Committee on Enforcement (ACE), which will
take place on 1-2 December 2010, will consider the following work programme:
"Developing on the substantive study contained in WIPO/ACE/5/6, analyse and
discuss IPRs infringements in all its complexities by asking the Secretariat
to undertake: (i) A literature review of methodologies and gaps in the
existing studies; (ii) Identification of different types of infractions and
motivations for IPR infringements, taking into account social, economic and
technological variables and different levels of development; (iii) Targeted
studies with an aim to developing analytical methodologies that measure the
social, economic and commercial impact of counterfeiting and piracy on
societies, taking into account the diversity of economic and social
realities, as well as different stages of development; (iv) Analysis of
various efforts, alternate models and other possible options from a
socioeconomic welfare perspective to address the counterfeiting and piracy
During the discussion on this item, developing countries called upon the
Secretariat for a balanced approach towards IP enforcement. Kenya said that
IP enforcement should be discussed, taking cognisance of the WIPO
Development Agenda, while India expressed hope that the work in the ACE will
continue in a holistic manner with due respect to the developmental aspect,
and keeping in mind the socioeconomic realities.
The Secretariat announced that WIPO will be the lead organiser of the sixth
Global Congress on Combatting Counterfeiting and Piracy, to be hosted by the
French Intellectual Property Institute in Paris on 2-3 February 2011.
In 2009, the Secretariat's road-map titled "The Future of the PCT"
(PCT/WG/2/3) was set aside in the PCT Working Group over concerns about the
harmonization of patent application, search and examination procedures. (See
SUNS #6698 dated 12 May 2009). However, in 2010, Members considered "The
Need for Improving the Functioning of the PCT System", (PCT/WG/3/2) and
adopted several decisions in relation to PCT reform. (See SUNS #6947 dated
18 June 2010 and SUNS #6953 dated 28 June 2010).
In relation to the reform of the PCT, the GA heard developing countries call
for sustainable PCT reform that mainstreams development considerations and
that does not result in global harmonisation of patents, in substance or in
practice. There were also calls for WIPO to identify the root causes of the
increase in patent applications and to address them, as well as to enhance
the ability of national patent examiners to conduct search and examination.
Egypt, on behalf of the DAG, said that it favoured deepening the analysis
and continuing the debate on the reform of the PCT within the parameters
agreed during previous sessions of the PCT Working Group. It further
underlined the need to ensure that PCT reform "does not entail any
harmonization of patent law, in substance or in practice, including as
stipulated under Article 27 (5) of the PCT".
In relation to the Secretariat's study (PCT/WG/3/2), Egypt noted that
improving the quality of the International Reports addresses partially the
"supply side" of the problem of dealing with backlogs. "We also have to
address the causal problems leading to the backlogs on the demand side' in
order to come out with sustainable, long-term solutions," Egypt added. The
reason behind the flood of patent applications which seems to far exceed the
level of actual innovation in the world needs to be addressed, it further
Egypt stressed that "an effective long-term and sustainable resolution of
the problems of backlogs and quality would require augmenting the capacity
of Offices to conduct as comprehensive search and examination as possible
for every application in a timely manner", and "this would require enhanced
support for Offices, especially in developing countries which must be
provided in accordance with the provisions of the PCT and the
recommendations of the Development Agenda".
Egypt further said that Article 51 of the PCT calls for the setting up of a
Committee on Technical Assistance, which has not been established so far. It
called for the setting up of this committee to enable the Secretariat to
look at technical assistance requirements comprehensively and address them
in a focussed manner.
Iran said it was convinced that there are possibilities to improve the
functionality of the PCT system without limiting the policy space of IP
offices in determining patentability criteria, or following national
legislation. It reiterated that there is no legal obligation for countries
to accept PCT reports. Since the PCT is a procedural treaty, the results of
its reformation should also be procedural and should not lead to
harmonisation of patent search and examination, added Iran.
South Africa welcomed the notion of improving the PCT in a balanced and
objective manner, stressing on the need to mainstream the DA in PCT reform.

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