[A2k] WIPO: Consensus still elusive after days of informal consultations

K.M. Gopakumar kumargopakm at gmail.com
Tue Sep 30 04:53:58 PDT 2014


*TWN Info Service on Intellectual Property Issues (Sept14/05) *
*30 September 2014 *
*Third World Network *

*WIPO:  Consensus still elusive after days of informal consultations*

Geneva, 30 September (K M Gopakumar) – Five days of informal consultations
among Member States at the on-going General Assembly of the World
Intellectual Property Organization (WIPO) has failed to reach consensus on
deciding the future course of action in four key areas.

The contentious areas are the work of the Intergovernmental Committee on
Intellectual Property, Genetic Resources, Traditional Knowledge and
Folklore (IGC), the Standing Committee on Copyrights (SCCR), Design Law
Treaty, and the establishment of WIPO External Offices.

The 46th Session of the WIPO General Assembly is taking place in Geneva on
22 -30 September.

The fifth day (26 September) witnessed a series of informal consultations
that went on till 9.15 pm in the night in an effort to find consensus on
the IGC and SCCR.

After a brief plenary this morning (30 September), informal consultations
resumed as follows: 10 -11 am for the IGC, 11 am -12 noon for the SCCR,
12-1 pm for the Design law treaty and 2-3 pm for the External Offices
issue. The second plenary of the day is scheduled for 4 pm.

*Intergovernmental Committee on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore (IGC)*

The IGC process was initiated in 2000 with the aim to discuss issues
related to intellectual property rights and access and benefit sharing,
including the protection of traditional knowledge and traditional cultural
expressions. In 2009, the WIPO General Assembly gave the mandate to start
text-based negotiations on an international legal instrument aimed at
protecting traditional knowledge, traditional cultural expressions and
genetic resources.

The General Assembly extended the mandate for two times in 2012 and 2013
due to lack of progress caused by essentially a North-South divide among
Member States, with the possibility of taking a decision by the General
Assembly to take stock of the progress and to decide whether to hold a
diplomatic conference. (A diplomatic conference would be the formal stage
of negotiating a treaty.) While most of the developing countries demand for
a decision on the diplomatic conference, developed countries hold the view
that the text is not matured enough to take such a decision.

Informal consultations which started on 23 September have yet to reach a
consensus among Member States. On 29September two rounds of informal
consultations took place on the IGC. The morning’s informal consultation
(11.30 am to 1 pm) discussed two options.

The first option proposed to hold three sessions of the IGC in 2015 and a
diplomatic conference in 2016. It also proposed to entrust the 2015 WIPO
General Assembly to decide on the preparatory meetings taking into account
the budgetary process.

The second option proposed to intensify the text based negotiations in good
faith in order to take a decision on holding a diplomatic conference in
2016 at the WIPO General assembly in 2015. This proposal also contains the
plan of holding three sessions of the IGC in 2015.

It is learned that there was no consensus on both proposals, and that one
of the developed country delegations believed to be the US delegation even
opposed the words “in good faith” in the second proposal.

During the second informal consultation (7.30 to 8 pm) the discussion was
based on a new proposal. The new proposal had three components. First, it
calls for the intensification of the text based negotiations in order to
take a decision at the WIPO General Assembly in 2015 on whether to hold a
diplomatic conference in 2016. This proposal does not contain the words “in
good faith”.  Secondly, similar to the earlier proposals it also proposes
three IGC meetings in 2015 including a half-day meeting segment of
Ambassadors/senior officials.  Thirdly, it proposes to extend the mandate
of the IGC to either the 2016-17 biennium or the end of 2016.

Since the third proposal does not contain any decision with regard to the
diplomatic conference there was no consensus either at the informal
consultation. The informal consultations continue today.

*Standing Committee on Copyrights (SCCR)*

The informal consultation on the future work program of the SCCR is also
eluding consensus.  There are two contentious issues.  First is the
decision with regard to holding a diplomatic conference to conclude a
treaty on the protection of broadcasting organisations.

Second is the work towards an appropriate international legal instrument or
instruments (whether a model law, joint recommendation, treaty and/or other
forms), with the target to submit recommendations on limitations and
exceptions for libraries and archives as well as on educational and
research institutions and persons with other disabilities.

There are divergent views among Member States with regard to the future
course of the work program on limitations and exceptions. Some developed
countries would like to confine the SCCR work program only to the extent of
sharing national experiences. Developing countries, on the other hand,
would like to have a work program to finalise legal text.  Therefore
certain developing countries suggested text-based negotiations on
limitations and exceptions.  This demand is central to more predictability
with regard to access to knowledge especially in developing countries.

According to some delegates who attended the informal consultations, during
the informal consultations the SCCR chair may propose negotiations based on
last year’s decision. Since the last WIPO General Assembly did not provide
any clear direction for text-based negotiation for a legal instrument, this
would mean a status quo, i.e. a continued discussion only.  The decision
reads:

“The WIPO General Assembly:

(i) takes note of the information contained in document WO/GA/43/13;

(ii) takes note of the statements made by delegations at the forty-third
and forty-fourth sessions of the WIPO General Assembly in 2013; and

(iii) requests the Standing Committee on Copyright and Related Rights to
continue its work regarding the issues reported on in that document.”

The proposed draft decision for the Member States to consider at this
session before they went into informal consultations was as follows:

“ … encourage progress on limitations and exceptions consistent with the
recommendations approved by the WIPO General Assembly in 2012, namely to
continue discussions to work towards an appropriate international legal
instrument or instruments (whether model law, joint recommendation, treaty
and/or other forms), with the target to submit recommendations on
limitations and exceptions for libraries and archives as well as on
educational and research institutions and persons with other disabilities
to the WIPO General Assembly in 2015.”

*External Offices (EOs)*

There is still no consensus with regard to the establishment of EOs, which
is believed to have resulted in the suspension of the WIPO General Assembly
in October 2013. The facilitator circulated two texts within two hours of
intervals.  These texts were released after the informal consultations in
the morning of 29 September (10 am to 11.30 am). The informal consultation
did not result in a consensus.

The latest text at the time of writing contains seven parts viz.
transparency of procedures and decision making by Member States for the
establishment of new EOs, rationale for EOs, regional activity, financial
and budgetary sustainability, geographic/locational aspects, EOs
accountability/reporting, implementation and review. The document also
contains a draft decision of the WIPO General Assembly.

The draft decision proposes the adoption of the draft principles. It
proposes opening of not more than 2 EOs per biennium 2014-2015, 2016-17,
and 2018-19. Further, it proposes opening two EOs in Africa and the GRULAC
region in the 2016-17 biennium, and in Asia and other region in 2018-19
biennium.

*Design Law Treaty*

There were no informal consultations on the consideration of the convening
of a Diplomatic Conference for the Adoption of a Design Law Treaty last
week. The Central European and Baltic States (CEBS), the European Union and
Group B (several developed countries) are pushing for a decision to hold a
diplomatic conference to conclude the Design Law Treaty. The contrast is
stark when one considers the resistance of many of the same countries to
convene a diplomatic conference for treaties of concern and interest to
developing countries.

Even though the treaty is projected as a procedural law treaty it is a fact
that it has implications on the substantive law, particularly on the grace
periods, multiple applications and licensing of designs. On the evening of
29 September the CEBS and Group B circulated a draft text for the
consideration of Member States.

The draft decision proposes a diplomatic conference for the adoption of a
Design Law Treaty in 2015 with an understanding that the diplomatic
conference would consider the inclusion of an article on technical
assistance.  Further it also proposes a preparatory committee meeting  for
the diplomatic conference during  the 32nd Session of  the Standing
Committee on Trademark.

According to a developing country delegate the proposal is unlikely to fly
because the proposal does not include a clear decision to accommodate the
demand of the African Group to include a specific article on technical
assistance in the treaty.

The informal consolations have resumed for today.



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