[A2k] TWN Info: North-South clash results in suspension of CDIP session

Sangeeta ssangeeta at myjaring.net
Fri May 13 02:06:28 PDT 2011


Below is an article on the recent suspension by CDIP published in SUNS on 11
May. 

Regards
Sangeeta

Title : TWN IP Info: North-South clash results in suspension of CDIP session
 Date : 11 May 2011

 Contents: 
TWN Info Service on Intellectual Property Issues (May11/02)
11 May 2011
Third World Network
www.twnside.org.sg
 
 
North-South clash results in suspension of CDIP session
Published in SUNS #7147 dated 11 May 2011
 
 
Geneva, 10 May (Heba Wanis) -- A deadlock along North-South lines during
negotiations on a project on South-South cooperation has resulted in the
suspension of the seventh session of the Committee on Development and
Intellectual Property (CDIP) of the World Intellectual Property Organization
(WIPO).
 
The suspension came via a vote of show of hands late night on 6 May, which
concluded a week-long session of the CDIP that began on 2 May.
 
The week-long meeting saw a lack of political will on the part of developed
countries to effect progress at the CDIP, as each agenda item faced strong
opposition from the developed countries. This led to several calls for a
vote by Member States, an unprecedented move in the context of the CDIP.
 
The divisive issues in the meeting included: modalities for the
coordination, monitoring, assessing and reporting mechanism for the
Development Agenda, a proposal by the Development Agenda Group (a group of
like-minded developing countries) for a standing new agenda item in the CDIP
on Intellectual Property (IP) and Development (CDIP/6/12 Rev.); a project
proposed by the African Group on enhancing South-South cooperation on
Intellectual Property (IP) and Development among Developing Countries and
Least Developed Countries (CDIP/7/6); the revised project on patents and the
public domain (CDIP/7/5 Rev.); and a scoping study on Copyright and Related
Rights and the Public Domain (CDIP/7/INF/2).
 
The apparent North-South clash peaked late evening of 6 May, as intense
disagreements emerged over the project on South-South cooperation that was
proposed by the African Group (originally proposed by Egypt).
 
[The proposed project aims to create a formal avenue for South-South
cooperation in WIPO between developing countries and Least Developed
Countries (LDCs), in parallel to existing North-South cooperation.
 
[Under this project, the African Group proposes: assigning of a focal point
for South-South cooperation within the WIPO Secretariat; organizing
inter-regional meetings among developing countries and LDCs for sharing of
national experiences; organizing an Annual Conference on South-South
Cooperation on IP and Development; providing support and assistance to
developing countries and LDCs for training and capacity-building among
themselves through the WIPO IP Development Matchmaking Database (IP-DMD);
increasing the use of resource persons and experience-sharing from
developing countries and LDCs in WIPO technical assistance activities; and
dedicating a web-page to South-South cooperation on the WIPO website.]
 
Group B (composed of developed countries) and the United States were however
opposed to the project. In particular, they strongly opposed the proposal
over the "exclusivity" of the inter-regional meetings and conferences
proposed in the project, which is limited only to developing and least
developed countries. They sought the participation of all Member States in
all the events of the project, which was not acceptable to the African
Group.
 
According to some sources, during informal consultations, the developed
countries also proposed changing the title of the project to include
"trilateral" cooperation, in order to include developed countries in the
project. However, such an approach was also not acceptable to the African
Group.
 
The developed countries further pushed to reduce the number of conferences.
This was accepted by the African Group.
 
South Africa, coordinating the African Group, presented a final Œpackage' as
a compromise, i. e. an inter-regional meeting that is exclusive to
developing countries and LDCs to be followed by a conference open to the
participation of all Member States, and then a second inter-regional meeting
where developed countries would participate as observers.
 
In response, France, on behalf of Group B, however called the proposal
"asymmetrical" and "unbalanced".
 
A resulting deadlock on the matter led Egypt to call for a vote, by
roll-call, for the adoption of the project. This call was seconded by India
and Venezuela.
 
Group B opposed this call, suggesting instead, voting by secret ballot.
Spain justified this request on the basis that the decision pertained to the
participation of Member States.
 
[According to Rule 28 of the WIPO Rules of Procedure, voting by secret
ballot is used for "elections and decisions concerning States or
individuals".]
 
Several developing countries objected to such an interpretation. India and
the Philippines intervened to explain that the subject of the vote was the
adoption of a project and was not about the participation of Member States.
 
WIPO's Legal Counsel, to the surprise of many Member States, took the
position that Member States can interpret the Rules of Procedure
differently.
 
This led Egypt to call for another vote, but this time calling for the
suspension of the meeting. It also referred to the approach taken by WIPO's
Legal Counsel as an "extremely wrong interpretation", saying that it is a
sign of "incompetence from the Secretariat's side", which it said it would
take up at the UN level.
 
The CDIP session was suspended by a vote of show of hands, with discussions
to be resumed when it meets again in November.
 
MODALITIES OF THE COORDINATION, MONITORING, ASSESSING AND REPORTING
MECHANISM FOR THE DEVELOPMENT AGENDA
 
Discussion on the modalities took place mostly during the informal
consultations.
 
[Developing countries have been calling for a robust coordination mechanism,
since it formed a core component of the 2007 WIPO General Assembly (GA)
mandate, which requested the CDIP to "monitor, assess, discuss and report on
the implementation of all recommendations adopted, and for that purpose, it
shall coordinate with relevant WIPO bodies".
 
[Such a mechanism was agreed to by the WIPO General Assemblies held on 20-29
September 2010 (WO/GA/39/7, Annex II). The agreed coordination mechanism
included instructing WIPO bodies to identify the ways in which the
Development Agenda (DA) recommendations are to be mainstreamed in their work
and to include in their annual reports to the Assemblies a description of
their contribution on DA implementation, with the GA forwarding these
reports to the CDIP for discussion. The GA may request the Chairs of the
relevant WIPO bodies to provide it with any information or clarification on
the reports that may be required.]
 
In its opening statement at the CDIP meeting, Brazil, speaking on behalf of
the Development Agenda Group (DAG), stressed the importance of a permanent
and standard procedure for reporting, and to decide which relevant WIPO
bodies should report to the GA. It noted that two relevant WIPO bodies had
reported to the GA on their contribution to the implementation of the DA,
namely, the Advisory Committee on Enforcement (ACE) and the Committee on
Trademarks, Industrial Designs and Geographical Indications (SCT). Their
reports were however made on an "ad hoc" basis.
 
Towards this end, during the CDIP meeting, India proposed a draft text
containing "modalities" for the WIPO bodies and how such bodies should
report on DA implementation.
 
The draft text proposed by India states:
 
"Bearing in mind the mandate of the Committee on Development and
Intellectual Property (CDIP) to 'Monitor, assess, discuss and report on the
implementation of all recommendations and for that purpose coordinate with
relevant WIPO bodies', and
 
"The decision of the 2010 WIPO General Assembly contained in Annex II of the
document WO/GA/39/7 titled ŒCoordination Mechanisms and Monitoring,
Assessing and Reporting Modalities', which, inter alia, recognised that the
aim of the Development Agenda is to ensure that development considerations
form an integral part of WIPO's work and that the coordination mechanism
should promote this aim;
 
"It is agreed that:
 
"1. All WIPO Committees and bodies will report annually to the General
Assembly about the manner in which Development Agenda recommendations are
being mainstreamed in their work, and how they are contributing to the
implementation of the respective Development Agenda recommendations.
 
"2. To this end, the session of the Committee/body immediately preceding the
session of the General Assembly, will contain a standing agenda item titled
'Implementation of the Development Agenda'.
 
"3. Under the above agenda item, all Members of the Committee/body will be
invited by the Chair to provide their views and comment on the mainstreaming
of the Development Agenda in the work of that Committee/body.
 
"4. The Chair of the Committee/body will compile the views expressed under
this agenda item, and forward the compilation to the Chair of the General
Assembly, as the report of the Committee/body to the General Assembly,
required under Annex II of document WO/GA/39/7.
 
"5. The General Assembly will consider the report and may request the Chair
of the relevant WIPO body to provide it with any information or
clarification on the report that may be required.
 
"6. After considering the report, the General Assembly shall forward the
report to the CDIP for discussion under the first substantive item of its
Agenda. Sufficient time would be allocated to the agenda item to complete
its deliberations within the meeting schedule. The duration of the CDIP
sessions shall be extended on an exceptional basis, if a clear need is
identified, subject to the agreement of all Member States. In addition,
during discussion of future work, the Committee may consider the duration of
the next CDIP meeting.
 
"7. The CDIP shall include a review of the implementation of the Development
Agenda recommendations in its report to the General Assembly, to be
discussed in the General Assembly under the standing item of the ŒReport of
the CDIP', as a sub-item entitled 'Review of the implementation of the
Development Agenda Recommendations'."
 
Another informal paper containing a list of 18 WIPO bodies that would report
to the WIPO GA on DA's implementation was also distributed. The paper also
states that "This list remains open and may be revised as agreed by Member
States".
 
[The 18 bodies listed in the informal paper are: Coordination Committee;
Programme and Budget Committee; CDIP; Intergovernmental Committee on IP and
Genetic Resources, Traditional Knowledge and Folklore (IGC); the Standing
Committee on Copyright and Related Rights; the Standing Committee on
Patents; Standing Committee on Trademarks, Industrial Designs and
Geographical Indications; Committee on WIPO Standards; Advisory Committee on
Enforcement; Audit Committee; Patent Cooperation Treaty Working Group; IPC
(International Patent Classification) Committee of Experts; IPC Revision
Working Group; the Nice Union ad hoc Working Group; the Working group on the
legal development of the Lisbon system; the Working Group on the legal
development of the Madrid system for international registration of Marks;
Working Group on the review of rule 3(4) of the regulation under the
Singapore Treaty on the law of Trademarks; and Inter-sessional Working
Groups under the IGC.]
 
The developed countries are keen to limit the number of WIPO bodies that
will report on the implementation of the DA, while developing countries
would like to extend the reporting obligation to all WIPO bodies.
 
As the matter remains unresolved, discussion on this issue will resume at
the next CDIP session.
 
IP AND DEVELOPMENT
 
At the last session of the CDIP (sixth session held on 22-26 November 2010),
Brazil, on behalf of the DAG, had tabled a proposal calling for the
implementation of the third pillar of the mandate of the CDIP, i. e.
"discuss IP and development related issues as agreed by the Committee, as
well as those decided by the General Assembly" (CDIP/6/12/rev).
 
The proposal sought to include an additional standing agenda item in the
CDIP entitled "IP and development-related issues".
 
This proposal was an agenda item at the seventh session last week, but
little progress was made on this issue, as positions between developed and
developing countries were polarized.
 
Brazil, speaking on behalf of the DAG, argued for the inclusion of this new
agenda item. It said that the implementation of the DA "should not be
restricted to the design and execution of projects", but rather should
ensure that the DA will "permeate the mindset of WIPO" and lead to
"development-friendly norm setting".
 
Further, Brazil noted that discussions under this agenda item could cover,
among other issues: report on the discussions of WIPO's Seminar Series on
"The Economics of Intellectual Property"; WIPO's Contribution to the United
Nations Millennium Development Goals; and preparation for the upcoming
Conference on IP and Development.
 
Hungary, speaking on behalf of the European Union, said that while it was
willing to discuss the mentioned elements, it could not agree to a standing
agenda item on IP and development.
 
The issue remains pending, as the CDIP session was suspended.
 
PATENTS AND THE PUBLIC DOMAIN
 
Another controversial topic discussed was the revised project on patents and
the public domain (CDIP/7/5) to implement Recommendations 16 and 20 of the
Development Agenda.
 
The project contains two components, one being a micro-level study on
patents and the public domain that will analyse, in particular, the impact
of certain enterprise practices in the field of patents on the public domain
and the important role of a rich and accessible public domain, as well as
enterprise practices that could enhance benefits of a rich and accessible
public domain or, where that is not the case, that may encourage a robust
public domain.
 
The second component is the consideration of patents and the public domain
in the context of norm-setting. The project also envisages an expert panel
or a conference on patents and the public domain during the first quarter of
2013.
 
The developed countries were generally unwilling to consider the project,
calling it a "duplication of effort", as they referred to discussions taking
place in WIPO's Committee on Patents.
 
In response, developing countries criticised what they viewed as the overuse
of the term "duplication".
 
"This is not going to take us anywhere," Egypt noted.
 
The US rejected the project outright. The US delegation said that it had
instructions from capital that the US was unable to support the project.
 
The project will be discussed further at the next CDIP meeting.
 
SCOPING STUDY ON COPYRIGHT AND RELATED RIGHTS AND THE PUBLIC DOMAIN
 
Another item discussed was the "Scoping study on copyright and related
rights and the public domain" (CDIP/7 INF/2) prepared by Mrs Sevrine
Dussolier, Professor, University of Namur, Belgium, under the project on
Intellectual Property and the Public Domain (CDIP/4/3/REV).
 
The study includes an evaluation of the role of the public domain in
copyright and recommendations in this regard.
 
Many developing countries (South Africa on behalf of the African Group,
Brazil on behalf of the DAG, Pakistan and India) requested the Secretariat
to expand on the recommendations provided in the study.
 
[The proposed recommendations include modifying the 1996 WIPO Treaties to
integrate in the definition of "Rights Management Information", any
electronic information pertaining to public domain works and to prohibit a
technical impediment to reproduce, publicly communicate or make available a
work that has fallen into the public domain on the rationale that there is
no legal basis for the enforcement of technical protection measures applied
to the public domain.]
 
Developed countries, particularly the US and Switzerland, are opposed to the
recommendations related to amending the 1996 WIPO Treaties. Accordingly,
they opposed the request by the developing countries. "We are opposed to
some of the recommendations, so we are not sure if it is worth the
Secretariat's time," the US noted.
 
OTHER DISCUSSIONS
 
Interventions under the Director-General's Report on Implementation of the
Development Agenda (contained in document CDIP/7/2) revealed several
reservations by developing countries on the report.
 
Algeria noted that the end of a project does not mean the "end of the
recommendation", stressing that implementing the DA recommendations is about
the evolution of the "development culture" in WIPO's work.
 
On WIPO's engagement with other UN organisations, Egypt requested
clarification on such activities and the substantive contributions that the
Secretariat makes in this regard.
 
Egypt also noted that WIPO's engagement in discussions and negotiations in
other fora on global challenges, such as climate change, health, food
security, etc should be guided by the mandate agreed by the Member States.
 
It added that on issues that have not been discussed by Member States, or a
consensus reached thereon, it would be premature for WIPO to define a
position for itself.
 
Egypt also underlined the need for a more transparent definition of "what
constitutes a development-related activity in WIPO".
 
A study on Patent-Related Flexibilities in the Multilateral Legal Framework
and their Legislative Implementation at the National and Regional Levels -
Part II (document CDIP/7/3) was also discussed during the meeting.
 
Brazil, speaking on behalf of the DAG, saw it as only "scratching the
surface" by providing only a "general overview of five flexibilities". (The
flexibilities covered by the study are: transition periods; patentability of
substances existing in nature; disclosure-related flexibilities; substantive
examination; and ex-officio IP office control of anti-competitive clauses in
patent licensing agreements.)
 
Several developing country delegations also specifically expressed their
discontent with paragraph 83 of the study under Section V on Substantive
Examination.
 
The paragraph states that "Conducting search and substantive examination for
all applications may thus not be the best approach for all patent offices",
and recommends "different options", that is, "conducting only formal
examination, or conducting formal examination and search, or conducting also
substantive examination, but relying on work carried out by others via
cooperation arrangements".
 
[This paragraph is in line with WIPO Secretariat's continuous promotion of
"outsourcing of substantive patent examination".]
 
India called the study "sketchy" and "inadequate". It specifically called
for paragraph 83 to be removed from the study. +
 
 
 








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