Fwd: [A2k] WIPO chief's agenda raises development concerns

[Pranesh Prakash]

FYI.

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Subject: [A2k] WIPO chief's agenda raises development concerns
Date: Thu, 24 Sep 2009 07:54:12 +0800
From: Sangeeta <[hidden email]>
To: a2k discuss list <[hidden email]>,
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WIPO chief's agenda raises development concerns
SUNS #6778 Thursday 24 September 2009


Geneva, 23 Sep (Sangeeta Shashikant) -- The Director-General of the
World Intellectual Property Organization (WIPO), Francis Gurry, on
Tuesday presented his vision for the organization, which includes
further norm-setting in the area of copyright to accommodate the
concerns of right-holders in the digital age and the adoption of his
controversial proposed Patent Cooperation Treaty (PCT) road map which
would move in the direction of removing many of the checks and balances
needed for development.

The WIPO chief laid out his vision in his opening statement at the
forty-seventh session of the WIPO Assemblies, which is meeting from 22
September to 1 October to review the organization's status of activities
and discuss future work.

On both the issues of norm-setting in the area of copyright and the
proposed road map for the PCT, the vision is underlined by the view that
otherwise WIPO may become irrelevant as a result of on-going bilateral
and plurilateral initiatives.

The vision also includes renewing the mandate of the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore (IGC), and on terms that will provide grounds for
the developing countries to believe that tangible solutions at the
international level to deal with misappropriation of genetic resources,
traditional knowledge and folklore are close.

Gurry also stressed, albeit without much elaboration, on the need for
"ambitious" projects pertaining to the Development Agenda and on the
need "to agree upon a coordination mechanism that establishes a seamless
relationship between approval of projects, budgeting and monitoring".

National innovation and intellectual property (IP) strategies were also
highlighted by Gurry as the main basis for WIPO to deliver technical
assistance to countries.

In a context where developed countries are the main holders of
intellectual property rights (e.g. patents), and thus exporters of IP,
and developing countries are mainly importers of IP and the main victims
of "access", several of Gurry's priorities raise concerns from a
development perspective and may result in controversy.

On norm-setting, Gurry noted that the "normative agenda...is not
progressing". He said that "the rate of progress in norm-making is in
inverse proportion to the rate of technological change". This, in his
view, "poses several major risks" for WIPO. He added that WIPO will
"lose its role in economic rule-making", and "multilateralism will
suffer and recourse to bilateral and plurilateral solutions may become
more frequent."

Gurry said that "Global use of technologies calls for global normative
architecture".

The Director-General then linked making rules for the latest advances in
technology with rules on traditional knowledge (TK), adding that WIPO
"must be able to deal with all".

On the issue of TK, Gurry appealed for a show of  "flexibility and
understanding that is necessary to renew the mandate of this Committee
on terms that will provide grounds for the developing countries, in
particular, to believe that tangible solutions at the international
level to the unfair misappropriation of traditional knowledge and
traditional cultural expressions are close".

The issue of TK is expected to be one of the most controversial issues
to be discussed at the Assemblies, as Members have to take a decision on
renewing the mandate of the Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore that
was established by the WIPO General Assembly in October 2000.

The Intergovernmental Committee (IGC) presently has the mandate to focus
on the "international dimension" and "no outcome of its work is excluded
including the possible development of an international instrument or
instruments". However, in the last nine years, nothing substantive has
emerged from the IGC as a result of resistance from the developed
countries, in particular, the US, Japan, the EU and Australia.

At the last session of the IGC in July 2009, the African Group submitted
a proposal (supported by most other developing countries) for the
renewal of the IGC's mandate, with calls for text-based negotiations,
the establishment of a defined work programme, time-frames including for
inter-sessional work sessions, and a diplomatic conference to expedite
work on the development and adoption of an international legally-binding
instrument for genetic resources, traditional knowledge and folklore.

However, no agreement  was reached on the IGC's mandate since developed
countries were opposed  to any text-based negotiations or an
international legally-binding instrument on the matter.

According to some African delegates, these differences persist and will
emerge as the agenda item is discussed during the Assemblies.

The second normative area that Gurry focussed on was copyright in the
digital environment. He said: "We are witnessing the migration of most,
if not all, forms of cultural expression to digital technology and the
Internet - music, film, news content, literature and broadcasts of
cultural and sporting events". He added that "they do signal a challenge
for the institution of copyright".

Gurry further said that "The evidence suggests that the current means
are suffering severe stress", and that "according to industry
estimations, 40 billion files of music were illegally file-shared on the
Internet in 2008, a piracy rate of 95%".

"I am not too sure that the impact of these tumultuous developments in
digital technology can be dealt with by way of negotiation of individual
issues in one of our Standing Committees. These developments are too
fundamental. They concern a question of major importance to the whole
world, which it is not an exaggeration to characterize as the financing
of culture in the 21st century," he added, suggesting "the possibility
of some form of global consultation and reflection on this question".

Gurry's intervention on norm-setting in the copyright area appears to
want to import contentious ongoing discussion, in and among developed
countries, pertaining to copyright protection in the digital age that
favours specific copyright holders in developed countries.

The intervention also reveals a bias towards norm-setting in the
interest of right-holders based on data produced by the right-holders.
No mention is made of possible norm-setting in the area of exceptions
and limitations to copyright that would benefit users/consumers and the
general public, although the issue of norm-setting in the area of
exceptions and limitations has dominated the agenda of the Standing
Committee on Copyright and Related Rights in its past two meetings.
There is also a treaty proposal on access to published works on the part
of the visually impaired supported by a group of developing countries.

Gurry also stressed the Patent Cooperation Treaty (PCT) Road Map as a
project of "great significance". He emphasized that it was not a
"norm-making exercise" since the PCT and the Road Map is about
"improving the functioning of a procedural treaty that links together
the patent offices of the world", adding that "it is about finding ways
to increase work-sharing, to decrease unnecessary inefficiencies, to
improve the quality of output of the international patent system and
thereby contribute to the management of the unsustainable backlog of 4.2
million unprocessed patent applications in the world."

The PCT Road Map was presented by the Secretariat at the May session of
the PCT Working Group and contained actions to be taken to reform the
PCT system. The PCT system allows an applicant to seek patent protection
for an invention simultaneously in many countries by filing an
"international" patent application.

However, at the May session, several developing countries raised
concerns that the Secretariat's Road Map moved in the direction of
removing many of the checks and balances needed for development. The
Road Map proposed inter alia the removal of reservations to PCT Articles
and Rules made by members in exercise of their rights under the PCT; and
promotes greater coordination in such a manner that the work of a few
patent offices designated as International Searching Authorities (ISA)
determines the outcomes of the national examination substantially by
raising a presumption of validity of patent applications examined by the
ISAs.

As a result of these concerns, the May session did not approve the Road
Map and sought more time to study the need for, and content of, such
reform. It also highlighted the need for the 45 Development Agenda (DA)
Recommendations to be considered in any move towards PCT reform.

The PCT Road Map is seen by many as Gurry's "pet project", thus the
strong push by the Secretariat for the adoption of the road map.

In his report to the Assemblies, Gurry also mentioned "counterfeit" and
explained that it meant "fake and deceptive". This is in total disregard
of the fact that counterfeit is defined in the TRIPS Agreement and in
the national laws of many countries as pertaining to trademark
infringement. He added that he saw WIPO moving "gradually" to a dialogue
on "ways and means of dealing in a practical way with the misuse of
intellectual property to sell fake products".

In relation to climate change, the Director-General said that "There is
a perception that intellectual property may be a negative influence in
the range of policy initiatives that are needed to deal with climate
change", but that he "did not believe that this perception corresponds
to reality". He further added that "it is difficult to imagine how a
property right on an individual piece of technology could constitute an
obstacle".

He however acknowledged that "Transfer of technology is thus fundamental
to effective action. The policy challenge of shepherding, through a
public process, the transfer of such an extensive range of technology
held in private hands, is daunting and frankly has never been achieved
before".

There is clear evidence of an upward trend in the patenting of
climate-related technologies since the mid-1990s and entities of
industrialized countries hold most of the technology. This raises
fundamental questions as to whether developing countries will be
hampered in their ability to gain, on reasonable terms, timely access to
latest mitigation and adaptation technologies as well as the associated
know-how. IP has been identified as being one of the barriers to
accessing climate-friendly technologies by developing countries (the
Group of 77 and China), who have submitted proposals within the context
of the climate negotiations to overcome the IP barrier.

With regard to the Development Agenda, Gurry said, without much
elaboration, that it was time to "transform that idea into an
operational reality", stressing the need to be more "ambitious" and "to
identify and execute projects that make a difference and that are not
just a continuation of standard technical assistance under another guise".

He further stressed on the "need to agree upon a coordination mechanism
that establishes a seamless relationship between approval of projects,
budgeting and monitoring".

The issue of a coordination mechanism was particularly contentious at
the last meeting of the Committee on Development and IP held from 27
April to 1 May 2009, as Group B (composed of developed countries) was
not agreeable to consider any such mechanism.

However, it is anticipated that several developing-country delegations
will stress the importance of deciding on coordination mechanisms as
well as modalities for monitoring, assessing and reporting on the
implementation of recommendations at this Assemblies during the agenda
item on the Development Agenda.
+


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Pranesh Prakash
Programme Manager
Centre for Internet and Society
W: http://cis-india.org | T: [phone]



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