May 3, 2005 | By Ren Bucholz

Playing Hide-the-Ball at WIPO

On April 14-15 (after the three-day WIPO Development Agenda meeting, a.k.a. IIM), the WIPO Permanent Committee for Co-operation for Development Related to Intellectual Property (the PCIPD) met for its fourth session.

The PCIPD is a pre-existing WIPO sub-committee, formed in 1998. There's no formal relationship between the Development Agenda and the PCIPD; the only thing they have in common is the word "development." Despite that, the PCIPD meeting turned into a debate about the right venue to discuss WIPO's development efforts. On the one side, the US, the UK, Switzerland, Australia and many of the developed "Group B" countries called for a "reinvigoration" of the role of the PCIPD and argued that all discussion of WIPO's development activity should take place there (and by implication, only there).

On the other side, Brazil and Argentina (and the others in the Group of Friends of Development) were not thrilled about the prospect of having their cross-cutting proposal removed from a special inter-sessional meeting of the WIPO General Assembly -- the center stage, really -- and relegated to a sub-committee which had not met for almost two years, and the mandate for which was unclear. (The PCIPD has historically focused on WIPO's technical cooperation and assistance activities.)

As both Brazil and Argentina politely pointed out in their interventions (see below), the Group of Friends of Development proposal deals with a range of issues beyond WIPO's technical assistance. For instance, WIPO's role in norm-setting, WIPO's governance structure, and a proposal to establish an independent body (WERO) to co-ordinate and evaluate WIPO's research and provision of technical assistance are important elements of the proposal. Apart from the lack of capacity of PCIPD to address the full range of proposals, it was clear to all in the room that moving discussion of the Development Agenda proposal to the PCIPD (and out of the plenary level Development Agenda meeting) would have the effect of marginalizing development issue discussions within WIPO. And, of course, the fact that this discussion was taking place the day after the IIM had concluded with agreement to hold a further two meetings to discuss the Development Agenda and other proposals, called into question the whole point of the previous three days' discussions.

Unsurprisingly, the PCIPD ended without any substantive agreement about its role in WIPO's development activities or work program. No draft report was adopted. The Chair worked hard to get consensus on his meeting summary and a process for finalizing the draft report of the meeting, but even that was fraught with difficulty. In the end, it was agreed that the
PCIPD's fourth session would be suspended and re-convened on a date during the plenary proceedings of the General Assembly in September 2005, to consider adoption of the report. The full text of the Chair's summary and final resolution is reproduced here, and our notes from the meeting are after the jump.

BLogging WIPO's PCIPD, April 14-15

Notes by:

Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on Technology
[TB]

Gwen Hinze, gwen at eff.org, Electronic Frontier Foundation [GH]

Ren Bucholz, ren at eff.org, Electronic Frontier Foundation [RB]

[NOTE: This is not an official transcript. Any errors and ommissions are regretted.]

-=-=-=-=-
Copyright-Only Dedication (based on United States law)

The person or persons who have associated their work with this document (the "Dedicator") hereby dedicate the entire copyright in the work of authorship identified below (the "Work") to the public domain.

Dedicator makes this dedication for the benefit of the public at large and to the detriment of Dedicator's heirs and successors. Dedicator intends this dedication to be an overt act of relinquishment in perpetuity of all present and future rights under copyright law, whether vested or contingent, in the Work. Dedicator understands that such relinquishment of all rights includes the relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in the Work.

Dedicator recognizes that, once placed in the public domain, the Work may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or non-commercial, and in any way, including by methods that have not yet been invented or conceived.
-=-=-=-=-

After the three day IIM on the proposal to establish a WIPO Development Agenda, the WIPO Permanent Committee for Co-operation for Development Related to Intellectual Property (the PCIPD) met for its fourth session, on April 14-15.

The PCIPD is a pre-existing WIPO sub-committee, formed in 1998. There's no formal relationship between the IIM and the PCIPD; the thing they have in common is the word "development". Despite that, the PCIPD meeting turned into a debate about the right venue to discuss WIPO's development efforts. On the one side, the US, the UK, Switzerland, Australia and many of the developed "Group B" countries called for a "reinvigoration" of the role of the PCIPD and argued that all discussion of WIPO's development activity should take place there (and by implication, only there).

On the other side, Brazil and Argentina (and the other Group of Friends of Development) were not thrilled about the prospect of having their cross-cutting proposal removed from a special inter-sessional meeting of the WIPO General Assembly and relegated to a sub-committee which had not met for close to two years, and the mandate for which was unclear. (The PCIPD has historically focused on WIPO's technical co-operation and assistance activities.)

As both Brazil and Argentina politely pointed out in their interventions (see below), the Group of Friends of Development proposal deals with a range of issues beyond WIPO's technical assistance, for instance, WIPO's role in norm-setting, WIPO's governance structure, and a proposal to establish an independent body (WERO) to co-ordinate and evaluate WIPO's research and provision of technical assistance. Apart from the lack of capacity of PCIPD to address the full range of proposals, it was clear to all in the room that moving discussion of the Development Agenda proposal to the PCIPD (and out of the plenary level IIM) would have the effect of marginalizing development issue discussions within WIPO. And, of course, the fact that this discussion was taking place the day after the IIM had concluded with agreement to hold a further two meetings to discuss the Development Agenda and other proposals, called into question the whole point of the previous three days' discussions.

Unsurprisingly, the PCIPD ended without any substantive agreement about its role in WIPO's development activities or work program. No draft report was adopted. The Chair worked hard to get consensus on his meeting summary and a process for finalizing the draft report of the meeting, but even that was fraught. In the end, it was agreed that the PCIPD's fourth session would be suspended and re-convened on a date during the plenary proceedings of the General Assembly in September 2005, to consider adoption of the report. [The full text of the Chair's summary and final resolution is reproduced here [link]].

Permanent Committee on Cooperation for Development Related to Intellectual Property (PCIPD)

Fourth Session, Day 1, April 14, 2005

WIPO Secretariat: (Geoffrey Yu, Deputy Director General)

Singapore: We would like to nominate the Permanent Representative (Ambassador) Manalo of the Philippines as President and Fernando Zapata Lopez from Colombia as Vice-Chair.

Chair (H.E. Manalo): Mandate of PCIPD

I propose we look at draft agenda of PCIPD/4/1.

The fourth session of this committee will only meet for two days. Perhaps the adoption of this report can be submitted to the delegations at a later date. Draft report may not be available by tomorrow evening; to be circulated week of April 27. We will be adopting a substantive paper that may take the form of a chair's summary-hopefully before 6 PM tomorrow evening. I will give you the dates of when the draft report may be made available.
Same as per IIM procedure yesterday.

List of 15 non-accredited NGOs that have requested ad hoc accreditation read by WIPO Secretariat. Approved for ad hoc accreditation for this meeting.

Geoffrey Yu: Addressing Document PCIPD/4/2 - Overview of Policy Directions, Priority Areas, and Projects in WIPO's Support of the Development Objectives of Developing Countries.

In carrying out our program of support for developing countries we have a couple of guiding principles:

1.We try to carry out technical cooperation to as many developing countries as is possible and to meet the type of needs they request, including provision of the following:

- Equipment and basic training

- Development of national IP policies

- Study and support of business opportunities available to national stakeholders

2. What WIPO does is demand driven, and Member country driven. We respond to requests by WIPO Member States.

3. We are responsive to the evolving situation in each Member State.
We are responsive in planning those activities to priorities, needs, sensitivities, and range of stakeholders within country.

4. We are responsive to evolution of IP system - to new developments, particularly in public policy, to goals which country wants to obtain

5. We try to use local and regional expertise if possible.

6.We engage with countries' government concerned to do evaluation to see whether activity means concerns and goals of country concerned.

All of this, within WIPO's limited financial resources

Within the African setting we are in the process with some 10 countries, of doing stocktaking of IP laws in these countries. Result of stocktaking is to develop different strategies for different categories of stakeholders involved.

We participated with OAPI and African Ministries of Health in Yaounde on IP and Public Health. We are working with: OAPI, group of Francophile countries to help them develop national development policies, With African Commission, NEPAD

In the Arab countries, we have been assisting countries in helping them understand the benefits of cultural industries and the economic impact and contribution that they could make to the national economy. We have done studies, with aim of helping national governments to understand potential benefits that could be gained from IP.

Within the Asian setting, we are currently undertaking process with the group of 10
ASEAN countries, with the view of completing a number of studies. These studies are NOT, I repeat not, initiated by WIPO but by individual governments and the ASEAN secretariat and the ASEAN IP Working Group, and ASEAN Ambassadors here in Geneva. When we develop programs, it involves full range of players - national and international.

We have also been active (not just in African and ASEAN groups) in advising countries seeking to join WTO (not just per TRIPS by 2006). We are doing this in Latin America, Africa, and elsewhere. This advice is bilateral, confidential.

In Latin American and Caribbean area, had meeting with ministers in charge of IP and consultation on what they wanted to achieve. This was the subject of joint Memorandum for Co-operation.

Also as part of the stocktaking we have been doing, we have discovered institutional co-operation deficiencies. These linkages must be strengthened.

With respect to TRIPS flexibilities-WIPO has provided advice on:

1) Implementation of Doha Declaration

2) Limitations and Exceptions to copyright

3) Access to Knowledge issues

4) Competition issues

5) Parallel imports/ trade

We held a seminar with Latin American IP ministers to discuss free and open source software.

Towards the end of last year, WIPO held a Ministerial Conference in the Republic of Korea for Least Developed Countries on the appropriate use of IP to fulfill development objectives, and to examine those options in light of the experience of countries who were in similar positions not that long ago.

The Secretariat looks forward to receiving guidance from delegations on these and all issues. The Secretariat is staffed by a dedicated team and looks forward to serving the needs of its Member States.

Chair: We have restricted time, so I requests delegations to limit presentations to 5 minutes. Longer presentations to be put in writing and handed to Secretariat. Coffee break cancelled.

Floor open to national delegates.

Morocco: Seeking clarification: what order for national, then regional statements?

Chair: regional first.

Morocco (on behalf of the African Group): Thank you to WIPO - both Dr. Kamil idris and the International Secretariat for high quality of document being considered.

Generally speaking, the overall description of policies described in the document meet our expectations, because focus on use of IP as tool for social, cultural, economic development in developing countries.

Challenges: capacity building, training (particularly for patents), awareness of IP rights, strengthen management of rights...

Strengthen local offices; need to make use of flexibility in legislative advice, as described in paragraphs 41-44 of the draft report.

Italy (on behalf of Group B): As stated in Group B's intervention in the first IIM, we mentioned WIPO's success in technical assistance. However, WIPO needs to go beyond capacity building. We must examine the relationship between IP and development.

We think that WIPO should devote substantial funding to these activities. We should assess WIPO's activities in tech cooperation. WIPO should encourage the use of TRIPS flexibilities. There should be stocktaking of WIPO's technical cooperation activities. Group B would like to launch a recommendation to perform a stocktaking in WIPO's activities in the development field. We believe that a strengthened PCIPD would mainstream development in WIPO.

Jamaica (on behalf of GRULAC): We need a continuous stocktaking of WIPO's activities in the technical cooperation field. WIPO's activities should take into account development goals.

It is important for GRULAC to be advised on how the general ideas in the document will be realized and the budgetary implications.

It is not clear what is intended by the strategy and plan of action in paragraph 9. We wish to caution against any budgetary increase for technical co-operation within WIPO budget. Technical co-operation budget should remain within WIPO's budget. Extra-budgetary resources are not bound by WIPO guidelines and hence are open to ethical questions.

The focus should be on flexibility in IPR law. This is an important part of TRIPs and must be reflected in WIPO's technical assistance response to requests for assistance with implementation of exceptions and limitations to IPR.

In our last meeting, we had requested that the forum be enlarged to include a wider range of ministers. This is even more important now. The development dimension is a cross-cutting issue.

Benin (on behalf of the Least Developed Countries group): It has been 33 years since the United Nations decided to call the LDCs "LDCs" recognizing the need for economic support. The danger for the LDC group countries is that they will become cut-off.

WIPOnet has implemented recommendations in 5 areas, including Traditional Knowledge, Genetic resources, LDCs benefit from WIPOnet's automization of documents. WIPO also provides valuable training on IP. We encourage WIPO to continue these efforts, because LDCs would like to use IP system to promote creation and generation of wealth. However LDCs face significant challenges in integrating IP into national development strategies, such as lack of resources, lack of training of staff. Most of us do not have the pillar of an IP infrastructure, nor the technical and financial resources to meet these needs without financial assistance. We would like to discuss trusteeship funds, as mentioned in the Secretariat's report.

Task is an immense one, particularly with regard to Traditional Knowledge, on which many LDCs rely. The application of traditional IP rights to TK carries tremendous potential. It is desirable to find a framework to protect and support the body of TK. LDCs should be able to take advantage of the same IP tools as the developed countries.

This is why the LDCs believe that the creation of a database by WIPO on TK is important; it will allow us to stop the exploitation of the TK of LDC's without compensation.

It is time for the LDCs to be integrated into the modern world. We ask WIPO to adopt principles in this meeting to do so.

Luxembourg (on behalf of the European Community and its 25 Member States): The EU believes WIPO should go beyond technical assistance and co-operation at national level. IP should contribute to better social, economic and cultural development in these countries. This will help balance IP and development.

EU supports exchange of information to lead to creation of models that can be used in other countries. WIPO should help countries implement the Doha Declaration on TRIPS and Public Health, and explore use of geographical indications that could protect traditional knowledge resources. EU supports work underway on genetic resources and TK protection. EU has provided a balanced proposal for its protection.

Singapore (on behalf of ASEAN group): We thank WIPO for helping countries to leverage IP as a tool for economic, social and cultural growth.

30 missions were undertaken by WIPO in the ASEAN region in 2004. In short, ASEAN-WIPO cooperation has been close, varied and intense. We look forward to working with WIPO to help fulfill the UN Millennium Declaration goals.

National Delegations:

Senegal: Associates itself with statement by Benin (on behalf of LDC Group).

Since independence, Senegal has had a priority on cultural promotion. I would like to highlight the joint initiative between Cote D'Ivoire and Senegal in publishing.

We've also had national initiatives for dance, decorative arts, and music program. Efforts have been made to promote culture but not sufficient. Lack of legislation to sanction infringement of copyright and related rights has been problem. Since 2001, we have also adopted legislation to strengthen anti-piracy efforts through customs service. Special committee presided over by Prime Minister to combat piracy. Cultural industry faces funding crisis. Banks have been timid in providing credit to fund the Ministry of Culture. We support creation of trusteeship fund, and a plurality of culture. Senegal is determined, through UNESCO, to adopt a convention on cultural diversity.

Re technical co-operation with WIPO, we take note of the initiatives, particularly the financial initiatives. We take note of the conceptual framework within paragraph 1, reflecting the view of the Director General, that IP be used as a tool of development in Africa.

Discussion of what is necessary for capacity-building and technical support: raising awareness of IP, particularly within the police who conduct enforcement.

Would like public health problems to be better taken into account. Will submit proposal at later time, to ensure that have access to medicine.

Ethiopia: Associates itself with statements of Morocco and Benin.

Challenges facing LDCs include weak administration. Ethiopia established a central IP office in 2001. Established a Collective management organization. In May 2004 Ethiopia established a national IP co-ordination committee.

Grateful for WIPO's efforts - in providing documents electronically through WIPOnet, training and jointly-organized conference in Addis Ababa, involving more than 250 people. That conference generated a series of recommendations. We are also grateful to WIPO for providing high-level participation of Geoffrey Yu, who participated in the conference, and also visited a number of important members of the Ethiopian government.

Sweden - studied document and generally agree that it reflects their understanding of agreed policy objectives. Sweden in conjunction with WIPO organizes 3 programs for Developing Countries each year: 1. copyright infringement, 2. industrial protection, 3. infrastructure. Each program has 25 members. Duration of 3 weeks in Stockholm, followed up by 1 week in the developing country. Added sessions on public policy, computer know-how, negotiation skills, competition law, SMEs, genetic resources, and Traditional Knowledge. Has led to gratifying results. In light of discussions over last three days, attach much weight to evaluation of the program. We also try to encourage co-operation and networking between developing country participants. Very much demand-driven. Grateful for assistance provided by WIPO international secretariat in these programs.

Dominican Republic: We have enacted new IP legislation. WIPO has responded to each and every request for technical assistance. US-CAFTA and DR Free Trade Agreement - We held workshop on IP issues arising in FTA, in conjunction with WIPO, together with Chile.

Sudan: WIPO gave assistance to construct new IP offices in Sudan.
Growing number of cases before our courts in last few years is a reflection of growing awareness of IP infringement.

What's important is to diagnose the problems that Least Developing Countries face and address them. There are many challenges we face today and in the future. We are not blaming or reproaching anyone for our situation. We hope to continue to rely on the future support of WIPO.

In Sudan we grant patents without always examining the authenticity of the applications. Frequently inventions of great value are assailed by big corporations, so that the inventor does not get very much financial benefit. We would like to ask WIPO to provide further technical assistance to help us to overcome this, and we need financial assistance to help us enforce IPR. We are inspired by the example of Korea.

We request that WIPO translate into Arabic two recent studies on education and training, prepared by Mr. Yoseph, former Chair of this meeting.

Pakistan: The overall vision animating the Secretariat's document is encouraging. There is a trend in the last two years to factor in economic and social issues. Trend may need to be strengthened as the debate over WIPO having a development agenda goes on.

What's not clear is how well resourced WIPO is to pursue this task. Does WIPO have the financial and human resources to deal with the tasks?

The regular budget has declined. To what extent has this gap been filled by extra-budgetary funding? We need to know this because this has implications for sustainability and predictably of funding.

The other important question is human resources. If the development agenda is to be advanced, we will need to have well-trained people to provide support for countries to do so. People must have requisite background and knowledge of specific needs of country involved.

We also have a concern about WIPO's infrastructure. We suggest that more detailed briefing from Secretariat is necessary, to understand what activities WIPO undertaken. e.g. paragraph 46 methodology for surveying the economic contribution of copyright-based industries. We are seeking ways of quantifying impact on Traditional Knowledge, genetic resources, etc. We support call for development assistance impact statement.

Noted paragraphs 46-47 of PCIPD/4/2. More information is required. Analysis and assistance has to be evidence-based. Examine: (1) where flexibilities exist, are they mooted by existence of multiple caveats.(2) understand impact of funding on design and delivery. Need further information about any extra-budgetary funding.(3) development assistance impact analysis as per GFoD proposal.

Right now the approach has been putting WIPO into development. What needs to be done is to integrate the Development Dimension into WIPO. Core issues like policy space must be established within WIPO to strengthen its role as part of the UN family.

Chair: We hope to have some time at end of national statements for Secretariat to respond.

Niger: Subscribes to statement of Morocco and Benin.

In these last years, WIPO has provided important assistance to IP development in Niger. Niger has enacted legislation that complied with international norms and strengthened institutional capacity. Despite these initiatives IP needs more protection to realize the UN Millennium Declaration goals.

It seems important for us to recall that African countries, in particular, LDCs
have structural adjustment programs (SAPs) under way. We express gratitude to WIPO secretariat that has worked together with OAPI on access to medicine.

Namibia: Associates itself with the African Group statement (Morocco).

Our government has set itself a development strategy (called Vision 2030).

Currently engaged in regional, and multilateral trade negotiations (e.g. US-SACU FTA). We need to build capacity in this area.

Paragraph 38 - NFAP assistance. Thank you to Sweden for assistance.

Paraguay: Associate ourselves with GRULAC statement.

Thank you for technical assistance with patent enforcement, strengthening of our CMO, remote training and provision of IP training tools for our companies. A study currently being undertaken to develop strategy and policy to benefit from IP. We are establishing a national office of IP. I'd like to mention the seminar on exceptions and limitations sponsored by WIPO in Chile last year - which taught us to think about the flexibilities under international law.

Morocco: in 2004 Morocco asked WIPO to articulate WIPO's development objectives and policy priorities. Thank you for responding to that request with the information outlined in this draft report.

We ask WIPO to provide us with examples of successful development. We would also like to see the results of WIPO studies it has undertaken. We would like a model that shows what is necessary to achieve successful development, to allow us to replicate it in the future.

We think WIPO's objectives as articulated in this document are in line with Morocco's objectives and priorities. We are currently undertaking efforts to implement TRIPs.

Jamaica: We are pleased to hear that WIPO is intensifying its technical assistance and development efforts in this area. We are pleased that note will be taken of the UN Millennium Declaration goals.

Creative industries are embedded in our country's national heritage. UNCTAD estimates creative industries can generate 1.3 US trillion in the near future. But regretfully, only a fraction of this will flow to developing countries. That is why we support WIPO's efforts at strengthening copyright and related rights. Copyright is not the only area, but it is an important area for Jamaica given its cultural industry.

Jamaica anticipates further assistance from WIPO in national branding strategies.
Thank you for advice provided on geographical indications and assistance with enactment of new GI legislation last year.

Jamaica has signed a co-operation agreement with WIPO, which we are very committed to, as witnessed by the number of joint projects between Jamaica and WIPO.


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