September 29, 2005 | By Ren Bucholz

Blogging WIPO's Main Event

EFF returned to Geneva this week for the WIPO General Assembly, a two-week marathon meeting where last year's progress is reviewed and future plans are hatched laid. While there are dozens of items on the agenda, we're tracking two very closely: the future of WIPO's work vis-a-vis the developing world (a.k.a. the Development Agenda) and a proposal to turn broadcasters into a new class of copyright holders (a.k.a. the WIPO Broadcasting Treaty). Both are currently moving in the right direction.

[Analysis and notes after the jump.]

We've been following the Development Agenda since its inception in 2004, when a collection of developing nations [PDF] began to organize around the idea that intellectual property policy ought to be tempered with respect for other social values. Instead of pushing for more IP protection as an end in itself, they argued, WIPO should assess the impact of its work on things like access to knowledge and access to medicine. This position has led countries with substantial IP industries (like the US) to obstruct progress of the Development Agenda. Diplomatic courtesy prevents any nation from opposing the existence of the initiative, but the US, Japan, Canada, the UK, and a few others have tried to dump discussions into a moribund committee. Since this kind of procedural discussion took up much -- if not most -- of the last year's meetings, the proponents of a strong Development Agenda understand how deadly bureaucracy can be. That's why a vast majority of the countries at WIPO are pushing to keep the Development Agenda in the mainstream by renewing the mandate of the existing meeting process. This would ensure that development issues remain front-and-center over the next year, and substantive recommendations can be presented at the next General Assembly. This isn't final and negotiations are still being held, but things look good.

This is a relief, since the Broadcasting Treaty remains so ugly. Its proponents claim that it will fight unauthorized use of broadcast signals, but the proposed cure for "signal piracy" is much worse than the disease. The WIPO Broadcasting Treaty would give copyright-like protection to broadcasters, webcasters, and cablecasters for a term of 50 years just for retransmitting a work. Click here to read more about why this is a terrible idea.

Despite the radical nature of the proposal, its proponents were very close to ramming it through to a "diplomatic conference" scheduled for the beginning of 2006. Such a conference is the final step of a treaty before passage. Today, many countries were able to register concern about this course of action, and it appears that two or more discussion meetings will be held before revisiting a diplomatic conference for the treaty.

We'll have more on these issues as they develop, but for now enjoy another day of collaborative notes from WIPO:

**WIPO General Assembly: Day 3**
September 28, 2005 (Wednesday)

Notes by:
Thiru Balasubramaniam, thiru at cptech.org, Consumer Project on Technology
Ren Bucholz, ren at eff.org, Electronic Frontier Foundation
Teresa Hackett, teresa.hackett at eifl.net, Electronic Information for Libraries

[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.
-=-=-=-=-

Chair (Ambassador Enrique A. Manalo. Permanent Representative of the Philippines): Opens proceedings, asks if we can agree to hear a speaker from last night who couldn't make it. No objections.

OEB (European Patent Office): [OEB is an IGO that works with the patent offices of European countries.] Provides general background on OEB and its activities/relationships with state patent offices.

Biodiversity and traditional knowledge - Globalization has exposed a differential between the needs of developed/developing nations. As a result, progress depends on each party being sensitive to the demands of the other. OEB is deeply involved in this, and we're happy to answer questions on this.

We welcome the efforts made by WIPO in conducting this debate in a fair manner. We will renew our support to WIPO in this forum.

The EPO is at the service of WIPO and is willing to share our technical knowledge with the International Bureau.

We want to create a big database of traditional knowledge, particularly using the "Epoch" tool, which will help protect traditional knowledge from infringements.

We are very sensitive to questions linked to economic growth and development. We take a balanced approach. We always try to respond to the development needs, and we're always happy to share our technical knowledge.

The EPO supports the patent harmonization process in a speedy manner.

Chair: Wishes to introduce Agenda item 10: Protection of the Rights of Broadcasting Organizations. Mrs. Hayes will introduce the item.

Secretariat: Deputy Director-General (Rita Hayes)- Would like to discuss the Broadcasting Treaty with a mind to move the proceeding forward to a diplomatic conference in 2006.

At the last GA, members decided to request the SCCR to accelerate its work on the protection of broadcasting organizations. Members also requested the International Bureau to present a second revised consolidated text of the treaty.

At the request of members states, WIPO held 7 regional consultations. 16 proposals were put forward, and there were extra meetings held for countries not in those 7 regions. Also a proposal for another meeting -- in November -- to discuss remaining issues. With this in mind:

It is also proposed that this SCCR that the Chair of this meeting draft another version of this consolidated text before the diplomatic conference.

Chair: Let's avoid discussion of technical matters, let us limit our discussions what has been proposed to the General Assembly.

[Note: we recorded opposition to and enthusiasm for the diplomatic conference with [A] and [F], respectively]

Ecuador: [F] We took the position at our regional meeting in Cartagena that a diplomatic conference is desirable. We reiterate this, and urge the formation of a diplomatic conference as soon as possible.

For convening of Dip Conf.

Iran (Asian Group): [A] The Broadcasting Treaty is one of the most complicated issues before WIPO. With the cross-cutting nature of these proposals -- effects on right holders, for example -- we would highlight its importance as well. In spite of the insufficient time given to consider the draft.

In contradiction with the decision of the SCCR, regional consultations were held. And regardless of the legal implications, many aspects of the current draft were in fact decided without consultation. According to the norms governing the laws of treaties, there is need of sufficient time to consider the consolidated text.

Need at least two further SCCR sessions in 2006. The committee can then present its findings to GA.

The Asian Group is of the view that webcasting is a new and changing environment, and it is our view that webcasting should not appear in any version of this text.

There is a clear distinction between the process of negotiations on the SCCR and Diplomatic Conference and the substance of a proposed treaty. Member States decide the framework of Diplomatic Conferences.

The holding of any Diplomatic Conference is premature.

Czech Republic (Speaking on behalf of Central European States): [F] Supports diplomatic conference.

Switzerland (Group B): [F] We expect that the WIPO GA will be ready to convene a Dip Con on a treaty on the protection of broadcasting organizations in Geneva in 2006.

Morocco: [F] We're pleased by the progress shown in this document for the protection of broadcasters' rights. We pushed for regional consultations. We were honored to hold the first consultation with Arab states.

The discussions took on behalf of the 2nd revised consolidated text. We have found that the IB will present the result of these regional consultations to the General Assemblies. Copyright law and existing rights don't provide adequate protection for broadcasters to protect them against signal piracy. The participants were satisfied with the flexibilites provided for in these proposals.

Moldova: We give the floor to Russian Federation which co-organized the regional consultations in June.

Russian Federation: [F] Regional Consultations were held with 9 countries in our region. The participants in the consultations that broadcasting has developed very quickly. The structures differ.

We should continue the work that has been happening since 1998. The protection of the rights of broadcasters must be balanced with respect for the holders of other rights. We came to the conclusion that a diplomatic conference should indeed be held in 2006. We also support the convening of a SCCR prior to the Diplomatic Conference.

Thailand (on behalf of ASEAN): We would like to thank the Philippines for hosting the regional consultation in July 2005. However, more needs to be done in the SCCR. We look forward to a postive outcome on this issue in the GA.

UK : [F] On behalf of the EU and the accession states of Bulgaria and Romania]. The EU welcomes the effort that has been invested so far, and we're ready to move forward on this issue. It is timely to move to convening a diplomatic conference to be held 2006. And we believe that any remaining issue can be worked out in the remaining SCCR meetinga and in the diplomatic conference itself.

El Salvador: [F] It is obvious we need to update the rights of broadcasting organizations.

We therefore support the convening of a diplomatic conference in Geneva. In conclusion, we are very pleased with the recommendation for the support of 50 delegation to attend the Diplomatic Conference.

Antigua and Barbuda (on behalf of the Caribbean countries): [F] Approve of the push for a diplomatic conference in Geneva during the second quarter of 2006. We support the holding of an SCCR in November 2005.

And since the World Cup of Cricket will be held here in 2007, we see the urgent need to address simulcasting and other broadcasting rights.

Trinidad & Tobago: [F] We also believe that all the general approaches for the protection of broadcasters have been discussed. It seems to us that the next step should be the convening of a diplomatic conference in 2006.

Kenya: [F] Reads statement of 14 African countries from their regional consultation. The current international legal framework of WCT and WPPT is inadequate. We note that the convening of a diplomatic conference should take place no later than 2006.

1) Recognizes the importance of development in broadcasters rights
2) Recognizes the urgent need to update broadcasters' rights through new international instrument
3) We therefore call on GA to schedule the convening of a diplomatic conference

Welcomed the webcasting proposal, and calls for more time to consider webcasting.

[TB: The US was present in the African regional consultations]

Romania: [F] 13 countries represented at our regional consulation. The consult was preceded by a meeting of regional broadcasters, NGOs, and states. Negotiations have been going on for a long time, progress has been made, and the current state of the documents allows for the remaining issues to be dealt with swiftly. We believe that WIPO should approve the convening of a diplomatic conference. Also observe that there should be a final, post-diplomatic conference SCCR meeting. We fully support the continuation of Mr. Liedes as chair.

Benin (LDCs): We find no problem with convening of diplomatic conference next year, but we require some support given our situation.

Mexico: [F] We support convening of DC as soon as possible.

Nicaragua: [F] We support convening of DC as soon as possible in 2nd quarter of 2006 given the substantial progress that has been made.

Colombia: [F] We believe that the substantial work on this topic has now matured, and we support holding a diplomatic conference in 2006.

Jamaica: [F] Agrees with statements of Trinidad & Tobago, and Antigua & Barbuda.

Norway: [F] We met recently in an extra-regional meeting to discuss the treaty [which seems to include many of the wealthier countries like UK, USA, Canada, Australia, etc.]. That group supports convening of a diplomatic conference.

New Zealand: [F] Aligns itself with Group B statement.

Japan: [F] Strongly supports convening a diplomatic conference in 2006.

St. Vincent and the Grenadines: [F] Aligns with previous statements from Caribbean nations.

Kazakhstan: [Not present]

Egypt: [A] Despite the fact that we are in favor of a convention, we feel that the negotiating process in its present form would suggest that there is much more to be discussed.

Currently, we are in a position that would prevent us from taking a positive decision on convening a DC.

South Africa: Would like to hand time to Brazil.

Brazil (Friends of Development sans Kenya/Ecuqdor): [A] WIPO is a member state-driven organization.

For reasons of both procedure and substance, would like to take issue with the draft treaty. In particular, we previously agreed to accelerate the work of the SCCR. The expectation was that the SCCR would give members an opportunity to discuss all of the complexities of these proposals.

However, only one member of the SCCR was organized after the last GA. The SCCR did not allow enough time to consider consolidated text.

Instead, regional meetings were held. We note that some of the countries in a region did not participate in their regional meetings. This is because many countries did not have the maturity to deal with this topic even at a regional level.

Discussions in SCCR have not matured to a state where convening a DC is possible. If anything, the SCCR process has exposed serious concerns on the length of term, nature of rights, TPMs, DRM, webcasting, interaction between this and other treaties. Webcasting should NOT be included as an item for negotiations. We also urge more time for exceptions & limitations.

We are of the view that 2 meetings of the SCCR should be convened next year before even considering the possiblity of a DC. We also note that a diplomatic conference can only be convened by SCCR, and is not properly under the jurisdiction of the Chair of the DA.

South Africa: [A] Associate itself with statement of Brazil. The importance of purported is in dispute. It is inevitable that a DC should take place in the future. We may be too optimistic in trying to convene a DC in the 2nd quarter of DC. We would like to express dissatisfaction with the manner in which regional consultations were organized.

In particular, invitations were extended to people in their personal capacities, not through diplomatic channels. Also, in Africa, only 14 of 53 countries attended.

There is no consensus on duration, TPMs, content of protection, webcasting, and others. Also, traditional knowledge, folkloric, and existing rightsholder issues are still undecided. Would like to reiterate the need for evidence-based impact assessments, which should be conducted before new treaties are proposed.

We do not support a diplomatic conference convened in the 2nd quarter of 2006.

Chile: [A] We believe the results of regional consultations are no substitute by the decisions of the SCCR. The time is not right for convening of a diplomatic conference.

Cameroon: [F] We associate ourselves with the statement of Kenya, since we participated in that regional consultation. We regretted the low participation of Member States in this regional consultation.

Nonetheless, there was consensus among participating countries that an instrument was needed to regulate this domain.

India: [A] India has been consistently of the view that the broadcast treaty does not take into consideration content owners. Goes far beyond TRIPs. It would harm access to knowledge. We noted that TRIPS based approach to protecting the rights of broadcasting organizations. We believe that this treaty would add an additional layer rights.

Could result in curbing the rights of content creators and harm access to knowledge. We consistently oppose any exclusive rights on the content they broadcast as they would impede access to the public domain. We also oppose, still, any attempt to add webcasting to the treaty - even as an optional provision.

India has raised this matter at UNESCO. We feel this issue goes beyond the realm of IP. UNESCO has been requated to pro-actively consider this issue.

India's broadcasting industry has come of age, and it is concerned with signal piracy. However, they do not advocate a new layer of monopoly rights as a method for addressing this issue.

We would like to urge the GA not to rush into a DC. Current approach would give an inordinate amount of rights to broadcasting organizations. We support the position of Asian Group, 12 FOD, Chile and South Africa.

United States: [F][unkown speaker] Urges prompt convening of a diplomatic conference.

China: [A] We note the contribution of the SCCR on protection of broadcasters, and we support the continuation of that process. We support the holding of a diplomatic conference, but only at the appropriate time.

Ghana: [F] Supports convening of DC.

Kazakhstan: [F] Mentions that visit of Dr. Idris lent energy to developing their IP system. Also, Kazakhstan is one of the leading countries of the central Eurasian area -- the rate of growth of GDP and personal income was second only to China last year.

Russian Federation: The impression here is that a number of countries are against holding a diplomatic conference. Although we share that there are issues of principle that need to be addressed today -- like the balance of rights between broadcasters and existing rightsholders. I agree that this is an issue, and it has been an issue since 1990. If we don't address this, then broadcasters will take advantage and further harm the rights of producers. Therefore, we support convening a diplomatic conference in order to move forward.

Venezuela: [A] I personally took part in the proceedings in Cartagena. I saw that there was quite an imbalance in the agenda. We had the private sector from telecommunications sector.

There was no NGO invited along that was in fact against such a treaty. Furthermore, after seeing that there were problems in the conduct of the meeting, I left the meeting with the approval of my capital.

This may threaten an upcoming initiative called Telesur (Cuba, Uruguay, and Argentina), and we therefore need further assessment of this treaty. We therefore oppose the convening of a diplomatic conference for now.

Ukraine: [F] In our regional grouping, we felt that it was important to protect broadcasting organizations.

Croatia: [F]

Morocco: [F] We propose that DC be held in LAST quarter of 2006.

Peru: [?] Our position to ask the chair to give us more time to sufficiently study the proposal in greater detail. Could you give us further time to consider this decision?

Chair: Didn't hear any statement that opposed a diplomatic conference. Also heard considerable support for holding a diplomatic conference under the terms proposed. Iran requests floor.

Iran: Asian Group opposed the convening of a DC in 2006 and requested 2 more SCCRs.

India: As mentioned by coordinator, we were perturbed by your summary.

Chair: I meant to say -- and what I did say -- was that I didn't detect any opposition to the concept of a diplomatic conference. Instead, it's an issue of timing. In the view of the chair, I would hesitate to seek a decision on item 14 as such.

I would hesitate to reach a decision on paragraph 14. Therefore, I think it's best to have informal consultations in the afternoon (regional consultations plus additional delegations). I believe we cannot reach a consensus on the current language.

Brazil: Chair's summary doesn't quite capture all of the concerns of those who expressed a desire to wait. In fact, the reticence to have a diplomatic conference is an indicator of how much material we haven't seen yet. Therefore, there is no pre-approval of a diplomatic conference either.

Chair: Let us meet at 2:30 in Room B to have informal consultations to discuss item 10 (Protection of the Rights of Broadcasting Organizations).

[Administrivia]

[Lunch]

5:10 P.M.

Chair: On Item 10, we have yet to reach consensus. Therefore, I've asked the UK and Argentina to act as my delegates in having more consultations. We will return to this later.

Now, we turn to Item 13, the Development Agenda.

Mr. Sadala: Presents procedural background of Item 13.

Chairs: Wants to draw attention to document WO/GA/32/2. What we have to do is figure out how to proceed with this matter. We've had many substantive debates on this issue, and you're welcome to touch on those, but we should focus on how best to move this forward.

Argentina: I am taking the floor on behalf of (FoD). We pointed out that WIPO, as a UN agency, is bound by the goals of the UN.

Pushing for more IP without respect to its policy effects simply undermines IP. On the other hand, crafting IP alongside considerations for the public good will bolster respect for IP.

During the IIMs, we had substantial debate and many new proposals. More are waiting to present. This is an undeniable indicator of the deep interest in these issues.

Despite budding areas of consensus, several delegations kept us from reaching substantive and even procedural agreement.

As more countries wait to participate, we observe that continuing the IIM process is the only way to give equal footing to those ideas. The process that we started at the last GA shouldn't be unlimited, but should be a continuous one.

The PCIPD context is inadequate for this proceeding. We believe that the a continuation of the IIM, with three meetings in 2006 and a view to presenting our findings at the next GA.

Switzerland (Speaking on behalf of Group B): DA should be moved to the PCIPD.

Czech: We also believe that DA discussion should happen, but we think it should happen in PCIPD. We also observe that the DA should not keep WIPO from other matters.

Mexico (Speaking on behalf of GRULAC): We believe that WIPO should extend the mandate surrounding the DA for a certain amount of time.

Iran (Speaking on behalf of Asian states):

UK (Speaking on behalf of Europe & others): Continues to support the DA, but that this is best done in the PCIPD. Others have different views, but we all agree that progress is most important.

Brazil: Associates itself with Argentinian statement. IP is important to developed and developing countries alike. Many of the developed nations strong IP systems were able to do this via flexible paths that they now deny to developing countries.

Moreover, the broad support for this issue proves that this isn't a north-south issue.

Reads first four (of ten) prongs of a document produced at seminar on IP and development.

Like the overwhelming majority of WIPO members, we recommend that the IIM process be continued.

US: Noted at the last GA that development is one of the most important and daunting issues before WIPO. We also observe that:

While IIMs provided nice place to exchange views, they have not provided a forum for in depth investigation. In fact:

We do not believe that the IIMs are the right place for this -- they were a compromise, time-limited proceeding that has reached the end of its mandate.

The PCIPD, on the other hand, is permanent and has budget and staff. It also meets for a whole week. We, as member states, can change the mandate and even its name. How about the Permanent Committee on Development and IP? That way it won't sound like it's only about technical assistance.

We strongly believe that the PCIPD, not more IIMs, is the way to go.

As an existing entity, budgetary or technical issues can be addressed quickly. Plus, it's permanent.

China: We have only been operating an IP system for 20 years. We feel that, during this time, our creativity and innovation has increased. Much of this was due to technology and expertise transfer.

The forum that we use to discuss DA must be suited to such a broad issue, including one with the legal expertise to advise us. We also feel that, since norm-setting is so important, whatever forum we choose, it should have binding power on other committees. The previous IIMs have attracted 85 members states, and ever more participation from NGOs. And it produced a 300 page report. We think this illustrates its suitableness as a venue.

Morocco (On behalf of African group): We believe that renewing the IIM is vital to all African countries.

Chile: We support Mexico's statement on behalf of GRULAC.

Almost everyone agrees that the IIM should be renewed. Also, there are many proposals left to be discussed. With regard to proposals for the public domain, future proposals should be given equal treatment. We propose that the mandate should be extended to include such proposals.

Chair: About a dozen speakers but only a few minutes left, so we'll suspend until tomorrow morning. Malaysia will start tomorrow. Announcements:

1) consultations on officers have now concluded, and decisions will be read tomorrow morning
2) we'll probably have night meetings for the rest of the week
3) would again like to meet with regional leaders at 9 A.M.

Singapore: Thank you for decision for Singapore to host diplomatic conference on trademarks.

[Administrivia]

/Meeting: 6:02 P.M.


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