TWN Info Service on Intellectual Property Issues (Dec13/02)
16 December 2013
Third World Network

WIPO: Establishment of WIPO External Offices faces deadlock
Published in SUNS #7717 dated 13 December 2013

Geneva, 12 Dec (Alexandra Bhattacharya) -- Member States of the World Intellectual Property Organisation (WIPO) have been unable to reach agreement regarding the establishment of new External WIPO Offices.

The Assemblies of the Member States of WIPO is meeting in an Extraordinary Session on 10-12 December 2013 in Geneva in order to complete the unfinished work of the regular annual session of the Assemblies which was held in September.

Divergent views also persist with regard to the convening of a Diplomatic Conference for the adoption of a Designs Law treaty. Intensive informal consultations are currently being held on these two issues in order to reach consensus on decision paragraphs before the session concludes on 12 December.

During the first two days of the session, the Assemblies managed to complete work on all of the other items on its agenda which included the adoption of the WIPO Program and Budget for the 2014/2015 Biennium, matters relating to WIPO Governance and the work of two WIPO Committees: the Standing Committee on Copyright and Related Rights (SCCR) and the Committee on WIPO Standards (CWS).

At the start of the session, a minute's silence was observed in memory of Nelson Mandela. Ambassador Abdul Samad Minty of South Africa said that "Madiba belonged not only to South Africa but to the world" and had "touched hearts and souls of millions and turned hope into reality".

Ambassador Minty said that Mandela's legacy lived on as "we celebrate his life, values and principles" which should be used to transform situations for peace.

The Chair of the General Assembly, Ambassador Paivi Kairamo of Finland, said that the reason for the Assemblies being unable to complete work in September was due to an "overloaded agenda being passed on". She said that this was primarily due to Committees passing on their work to the Assemblies for decision-making and this should be avoided in the future.

WIPO EXTERNAL OFFICES

After managing to adopt the WIPO Program and Budget for the 2014/2015 biennium, the Extraordinary session of the WIPO Assemblies tackled the challenging and contentious issue regarding the establishment of WIPO External Offices (EOs). This issue has been the subject of intense discussion since June when the WIPO Secretariat circulated a proposal to establish five new WIPO External Offices: two in Africa and one each in China, the Russian Federation and the United States.

Discussion focused on a joint proposal (Doc A/52/5) by GRULAC, Group B (comprising developed countries), CEBS Group and India on "General Principles Regarding WIPO External Offices". The joint proposal tables the text of the facilitator (Ambassador Kwok Fook Seng of Singapore) which was the outcome of several months of consultation. It sets out guidelines for the establishment of new WIPO External Offices, in areas such as rationale, regional activity, and Financial and Budgetary sustainability.

(The proposal is available at: http://www.wipo.int/edocs/mdocs/govbody/en/a_52/a_52_5.pdf )

Positions were divided during the Assemblies on how to move forward on the issue of External Offices (EOs). The proponents of the joint proposal wanted the Assemblies to adopt the facilitator's text. However, the African Group was not in full agreement with the substance of the text and instead called for clarity on the geographical scope and the number of EOs to be established.

Algeria, on behalf of the African Group, said that the adoption of the guiding principles could not be delineated from the issue of location and the number of EOs to be established. It hoped that the principles would pave the way for the establishment of two EOs in Africa but at this time it was not in a position to accept the current proposal. It said that the discussion should continue to the next session, and also called for a clear roadmap to be identified for future work on the issue.

China agreed that the approval of guiding principles should be taken with a political decision on the number and location of EOs.

Pakistan said that there were still a number of areas of disagreement with the text. It said that the most important issue was to have greater clarity on the role and mandate of the functions of the EOs. There was also no clarity between national EOs and regional EOs. It referred to the issue of budgetary allocations for the EO, noting that considering that many candidates were highly advanced economies, it was "incongruent for WIPO to be required to provide funding for these offices". It concluded that the process of consultation on the issue should continue and not to rush any decisions.

The United States said it was necessary to remain prudent when opening new EOs and any new EO should be established in a "limited and strategic" manner. It added that the decentralisation of entities would not be in the broader interest of WIPO.

India said that the tabled proposal on the principles for the EOs was the "best possible compromise text" and should provide the basis for further decisions on the establishment of EOs.

Member States who are proponents of the proposal (India, Belarus, and Trinidad and Tobago) said that the text should not be reopened for discussion during the informal consultations in order not to "lose what is already on the table".

Informal consultations on a decision paragraph are continuing.

PROGRAM AND BUDGET FOR THE 2014/15 BIENNIUM ADOPTED

The WIPO Assemblies adopted the Program and Budget for the 2014/2015 biennium after the issue of external offices was "de-linked" from the Program and Budget.

Consensus was reached on a Chair's draft decision paragraph the day before the start of the Assemblies which had effectively deleted Paragraph 20.21 under Program 20 of the Program and Budget which dealt with the opening of new external offices.

Other elements in the decision on the Program and Budget included:

1. Formulation of target of the results framework of program 2 which includes the target of "Adoption of a Design Law Treaty by a possible Diplomatic Conference";

2. Formulation of target of the results framework of program 4 which includes the target of Adoption of an international legal instrument(s) by a possible Diplomatic Conference on traditional knowledge, traditional cultural expressions and 7 terrific results;

3. The allocation of 0.6 million Swiss francs in non-personnel resources in program 20 for the implementation of the Coordination Committee decision regarding opening external offices in China and Russia;

4. The move of a total of 0.9 million Swiss francs in non-personnel resources from program 20 to unallocated, pending any decision.

The decision also said that the IP and Global Challenges program (Program 18) would report to members at the 20th session of the SCP on patent related aspects of its activities and at the 13th session of the CDIP on the development aspects of its activities.

During the Assemblies, Trinidad and Tobago, on behalf of GRULAC, had initially said that the paragraph 20.21 under Program 20 of the Program and Budget should not be deleted as per the Chair's draft decision, but rather "suspended for further consideration and final decision by the PBC at its 23rd session".

The purpose of the proposal was to ensure that there was a roadmap for discussing the issue of new external offices and to keep the paragraph open for future consultation.

However, after informal consultations it was decided that in order to prioritize the adoption of the Program and Budget, the Chair's draft decision would need to be adopted as there was no consensus on the GRULAC proposal. Therefore, GRULAC, in a sign of flexibility, withdrew its proposal.

After adoption of the budget, the African Group made a statement in which it said that although the issue of external offices had been disassociated from the program and budget, it reminded members that no member had so far objected to the opening of two new external offices in Africa.

It requested for its statement to be annexed to the decision on the program and budget in order to ensure that discussion on the issue of external offices "did not start from scratch" in the future.

The WIPO Legal Counsel said that no statement could be annexed to the decision but it would be reflected in the report of the proceedings.

DIPLOMATIC CONFERENCE FOR THE ADOPTION OF A DESIGN LAW TREATY

As with all issues on the agenda of the Assemblies, consultations have been held on the proposed treaty over the last few months led by Marcello Della Nina from Brazil.

Mr Della Nina read out a report of the consultations in which he stated that throughout the process no delegation had opposed the convening of a Diplomatic Conference on a Designs Law Treaty (DLT).

Additionally, no delegation was opposed to the treaty addressing the issue of Technical Assistance (TA) and Capacity Building. However, the sticking point was that a number of delegations called for the issue of TA and Capacity Building to be addressed in the form of an article.

Based on this, Mr Della Nina said that a draft decision for the General Assembly included the positive recommendation for a Diplomatic Conference to be held in June in Russia. However, the issue of the nature of the TA provision needed to be resolved.

The draft decision read by Mr. Della Nina included three brackets with regard to the nature of the TA provisions: "legal", "legally binding" and "normative provisions".

The US expressed the same views as in the SCT a few weeks ago and stated that it could not support the insertion of "legally binding" in the draft decision with regard to the provision of TA in the treaty.

The CEBs Group said it was flexible regarding the three bracketed words.

GRULAC said that it "wished to maintain flexibility on all three options" with regard to the provision on TA and Capacity Building.

The African Group, in a strongly worded statement, said that the Group had shown considerable flexibility throughout the negotiations process for the DLT. The only demand in the entire process had been that the provision on TA and Capacity Building be a legally binding part of the Treaty.

It asked for members to respect this legitimate request and not to make it seem as if the Group was blocking the outcome. It reiterated that a clear reference to a legally binding provision on TA was the extent of the Group's flexibility.

The same views were echoed by a number of member states including South Africa, Cameroon, Tunisia, Zimbabwe, Iran, Senegal, Nigeria, Ethiopia and Mali.

Egypt said that the issue of TA and Capacity Building should not be divisive. It reminded Member States that several WIPO instruments contained specific articles on TA. It added that the issue came down to whether Member States could agree to extend development cooperation on this instrument or not.

Cameroon said that "everything we are working for is for general human development" and that wide differences between developing and developed countries still persist.

Zimbabwe said that this was a desperate plea by the African countries for TA and Capacity Building which "reflected the reality on the ground".

Spain said that the objective of TA could be achieved in different ways and "we should concentrate on the objective and not so much the form". Hungary also agreed that "content was more important than form".

Informal consultations on a decision paragraph are continuing.

The WIPO Assemblies also adopted Decisions on the following issues:

1. WIPO GOVERNANCE

During the WIPO General Assembly in September, no consensus was reached with regard to an African Group proposal which called on the WIPO secretariat to organize a two-day meeting which would discuss a recent UN Joint Inspection Unit (JIU) report that had made many suggestions for improvements at WIPO, the proposals submitted by Member States on WIPO Governance, and would make recommendations for the 22nd Session of the Program and Budget Committee (PBC), to be held in September 2014.

This decision paragraph of the Extraordinary General Assembly on this issue watered down the African Group proposal. The decision stated that the Assembly took note of the documents under this agenda including the African proposal and called for an information meeting to be organized with the JIU on their report and for member states to submit their proposals on WIPO governance to the next session of the PBC in September 2014.

Algeria, on behalf of the African Group, said that there was an utmost need to improve WIPO Governance, adding that although it could accept the current decision, the GA in 2014 must give serious consideration to the issues and make decisions.

2. MATTERS RELATING TO THE STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS

The General Assembly in September had also failed to reach agreement on the future work plan for the SCCR. One of the key issues was the CEBS proposal that was tabled during the session in September, which had called for the prioritization of work on the treaty on broadcasting and for the convening of a diplomatic conference at the earliest stage (preferably by 2015).

In the current session of the General Assembly, a decision was adopted which "requests the Standing Committee on Copyright and Related Rights to continue its work regarding the issues reported on ..." This in effect means that the SCCR will continue discussions on a work plan for the Committee.

The EU and CEBS stated that work on a broadcasting treaty was a priority. The EU stated that it did not believe that a legal instrument(s) was necessary for limitations and exceptions for libraries and archives, educational and research institutions and for persons with other disabilities.

Venezuela said that for it a broadcasting treaty was not a priority and that it had doubts about affording IP protections to organizations and not persons. It added that the SCCR should focus on implementing the Marrakech Treaty and work on limitations and exceptions.

The 26th session of the SCCR is meeting from 15-21 December.

3. REPORTS ON OTHER WIPO COMMITTEES: COMMITTEE ON WIPO STANDARDS (CWS)

During the September WIPO Assembly, developing countries had called for a decision whereby the CWS would report to the CDIP.

In the current session of the General Assembly, a decision was adopted which "requests the CWS to continue its work regarding the issues reported on ..." This adopted decision also effectively sends the issue back to the CWS for deliberation.