TWN
Info Service on Intellectual Property Issues (Oct14/01)
2
October 2014
Third
World Network
WIPO:
Failure to reach consensus, “no decision” adopted on four issues
Published in SUNS #7886 dated 2 October 2014
Geneva, 1 October (K M Gopakumar) – Member States at the recently
concluded 46th General Assembly of the World Intellectual Property
Organization (WIPO) adopted a “no decision” outcome when consensus
failed on four key issues.
This occurred on past midnight of the last day of the session that
was held from 22 to 30 September 2014.
Despite intensive informal consultations over several days and evening
some nights, the WIPO General Assembly concluded at 12.30 am without
any decision on four areas viz. the Intergovernmental Committee on
Intellectual Property, Genetic Resources, Traditional Knowledge and
Folklore (Agenda item 16), Design Law Treaty (Agenda Item 15), the
Standing Committee on Copyrights (Agenda item 14), and Matters Concerning
External Offices and the establishment of WIPO External Offices (Agenda
item 12).
The
Chair took up the agenda items in a chronological order at the final
plenary which started around 9.30 pm instead of its original scheduled
time of 4 pm.
A
series of informal consultations failed to bring consensus among the
Member States. Even though, according to many delegates prior
to the final plenary, there was some consensus on the way forward
with regard to the establishment of External Offices and the Standing
Committee on Copyrights, amendments were proposed by several Member
States to the Chair’s text on these two issues at the plenary. Since
there was no consensus the Chair proposed to adopt “no decision” on
these two items.
Similarly, even though the Chair proposed a decision on the work of
the Intergovernmental Committee on Intellectual Property, Genetic
Resources, Traditional Knowledge and Folklore (IGC) and Design Law
Treaty, amendments were also proposed from the floor. Again, it was
then decided to adopt no decision on these agenda items too.
The
final plenary considered these four agenda item apart from the adoption
of the report of the WIPO General Assembly and the closing of the
Assembly. The plenary took up the four issues in the following
sequence: Establishment of External Offices, Design Law Treaty, SCCR
and IGC. Since there was lack of consensus on each agenda item
the Chair proposed the adoption of “no decision” but postponed this
at the request of various Member States.
After
running through the all four agenda items the plenary broke for more
than half an hour to make a final attempt to reach consensus. It became
very clear that there was little chance of last minute compromises
during the Chair’s consultation with the regional group coordinators.
Accordingly the Chair proposed “no decision” and it was adopted.
According to experts, the consequence of a “no decision” adoption
does not result in a break down of activities in the four areas but
it may impact the nature of the activities.
Regarding
IGC there is a mandate until 2015, therefore the WIPO General can
take a decision with regard to the extension of the IGC mandate at
the WIPO General Assembly in 2015. However, some experts including
some Member States point out that since the IGC is not a Permanent
or Standing Committee, IGC sessions cannot be held without the approval
of a Work Plan at the WIPO General Assembly. According to other
experts, since there is a mandate on the IGC it is still possible
to hold informal sessions of IGC if the Member States want to hold
such sessions.
Regarding the establishment of External Offices, there was substantial
progress with regard to the General Principles for the establishment
of these offices. The Chair warned that the consequence of adoption
of a “no decision” would leave the progress in the General Principles
hanging. The decision of the WIPO General Assembly in December
2013 was to report to the WIPO General Assembly in September 2014.
[The WIPO General Assembly Decision, December 2013 decision reads:
“The Assemblies of the Member States of WIPO and the Unions administered
by it, each as far as it is concerned, decide to continue open-ended
consultations, under the guidance of the President of the General
Assembly, on the proposed guiding principles regarding WIPO External
Offices, as contained in the Annex of document A/52/5, and on the
establishment of WIPO External Offices, taking into account all proposals,
related documents including, but not limited to, the documents submitted
to the 51st Series of Meetings of the Assemblies under Agenda Item
14 and to the 52nd Series of Meetings of the Assemblies under
Agenda Item 5, and the positions and concerns, including on the process,
expressed by Member States during the PBC and Assemblies meetings,
for consideration and recommendation by the PBC and decision by the
General Assembly foreseen in September 2014.]
However,
some experts point out that the Member States are free to build upon
the existing work.
On SCCR, experts point out that there is a clear mandate from the
WIPO General Assembly 2012 to work on both areas of a broadcasting
treaty and on limitations and exceptions, which reads in sub-Para
3: “… approved the recommendations of the SCCR as set out in paragraphs,
9, 14, 19 and 23 of document WO/GA/41/14 regarding broadcasting organizations
and limitations and exceptions”.
[The 2012 mandate covers the protection of broadcasting organizations
(broadcasting treaty) and international legal instrument or instruments
on limitations and exceptions for libraries and archives as well as
on educational and research institutions and persons with other disabilities
(limitations and exceptions).]
Therefore the SCCR can continue its deliberations based on the 2012
mandate and make recommendations to the WIPO General Assembly in 2015.
Regarding the Design Law Treaty, the WIPO General Assembly can continue
the discussion at the Standing Committee on Trademark and make suitable
recommendations to the Assembly in 2015.
The
Intergovernmental Committee on Intellectual Property, Genetic Resources,
Traditional Knowledge and Folklore (IGC)
A series of hectic informal consultations failed to reach a consensus
due to divergent positions among Member States. Developing countries,
especially the Africa Group, demanded a specific decision with regard
to holding diplomatic conferences on the legal texts that have so
fay been negotiated in the IGC. They rejected the idea of a
Work Program on IGC without such a decision.
Developed countries led by Group B was in opposition, holding the
view that there is no clarity with regard to the content of the text
and there is no agreement with regard to the nature of text, i.e.
whether the international legal instrument is in the nature of an
international treaty or a guideline.
The European Union often stated that it is not ready to accept the
outcome of IGC negotiations in the form of an international treaty.
[A Diplomatic Conference is the United Nations formal procedure to
negotiate a treaty. The WIPO General Assembly in 2009 gave the mandate
to the IGC to start negotiations for an international legal instrument.
The IGC has been negotiating three international legal instruments
that seek to ensure the legal protection of genetic resources, traditional
knowledge and traditional cultural expressions.
This
mandate was extended in 2012 and 2013 due to lack of progress. The
divergence seen last week has essentially remained unchanged all these
years. See:
http://www.twn.my/title2/intellectual_property/info.service/
2013/ipr.info.131003.htm]
In the absence of consensus the Chair proposed the following draft
decision text at the 30 September late night plenary:
“ … (1) took note of the information contained in document
WO/GA /46/6
(2)
took note of the statements made by delegations at the Forty
Sixth Session of the WIPO General Assembly in 2014; and
(3)
decided that the WIPO Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore
(IGC) should meet in 2015 in order to make a recommendation
to the 2015 General Assembly as to the mandate of the
IGC for the 2016/2017 biennium.”
Unlike the 2013 WIPO General Assembly decision, the Chair’s proposal
has no explicit reference to the decision to hold the diplomatic conference.
Therefore it is not clear whether the WIPO General Assembly needs
to make a decision to hold a diplomatic conference to conclude a treaty
on genetic resources, traditional knowledge and traditional cultural
expressions.
In response to the Chair’s draft decision, Kenya on behalf of the
Africa Group proposed deletion of the third paragraph of the proposed
draft decision, and proposed alternative language. According to their
amendment, the WIPO General Assembly decides to convene a diplomatic
conference in 2015 to adopt a legally binding instruments.
Paraguay, on behalf of the Group of Latin American and Caribbean countries
(GRULAC), proposed an amendment by proposing an explicit work plan
for the IGC. This work plan contains three sessions of the IGC with
the first meeting in 2015 (5 days on traditional knowledge), 2nd meeting
(5 days on traditional cultural expressions), and 3rd meeting (5 days
on genetic resources and a 3 day-long high level segment of ambassadorial
or high level officers).
Japan, on behalf of Group B, expressed its disagreement on the proposed
amendments and stated that technical understanding is still needed.
Bangladesh, on behalf of the Asia Pacific Group, regretted that the
draft decision does not contain any work plan. It further stated that
in their understanding, the absence of any plan implies that the current
plan continues.
The European Union stated that any instrument has to be non-binding,
flexible, evidence-based and no decision can be reached at this stage.
India said the IGC texts have improved substantially and the draft
decision is extremely disappointing and does not reflect the views
of Member States. It aligned with the statement of Bangladesh on behalf
of Asia Pacific Group.
Iran while expressing disappointment on the outcome of the informal
consultations proposed to convert the IGC into a permanent or a standing
committee
Brazil expressed its support to the amendment proposed by Paraguay
on behalf of GRULAC and Kenya on behalf of Africa. It suggested
that the good way forward is to have a work program.
Egypt expressed its support for the amendment proposed by the Africa
Group and said that “death is honourable than torture” indirectly
expressing its position on no work plan without a decision on a diplomatic
conference.
The United States said that it could not agree to a decision on diplomatic
conference or the nature of the instrument without knowing the content
of the document. However it departed from its earlier stand and agreed
to have a work plan.
Design Law Treaty (DLT)
The informal consultations also did not result in a consensus. This
failure was due to the negative response of Group B and the Central
Europe and Baltic States (CEBS) Group to the demand of the Africa
Group to include a specific article on technical assistance in the
draft DLT. Group B and CEBS took a position that a decision
on technical assistance can be taken only at the diplomatic conference
and cannot be included in the draft treaty prior to the diplomatic
conference.
The Chair’s draft decision proposed the following text:
“The WIPO General Assembly will at its session in September 2015 decide
on whether to convene a diplomatic conference for the adoption of
the Design Law Treaty as soon as practicable”.
Kenya on behalf of the Africa Group proposed an amendment as follows:
“While encouraging the Standing Committee on Trademark (SCT) to continue
its work at its 32nd session and to include the provisions of technical
assistance in the draft text prior to the diplomatic conference.”
Japan on behalf of Group B and the EU expressed their regret that
there is no decision on convening a diplomatic conference.
The Czech Republic on behalf of the CEBS Group also expressed regret
that there is no decision on convening diplomatic conference. It reiterated
its flexibility on including an article on Technical Assistance. It
said that the issue should be decided in a diplomatic conference.
It also expressed its regret on lack of flexibility of “our partners”.
South Africa supported the amendments proposed by Kenya and stressed
the need for having an article on technical assistance prior to deciding
upon the dates for a diplomatic conference. In response to the CEBS
Group’s complaint of not enough flexibility from partners, South Africa
said that flexibility cannot be one-sided.
Standing Committee on Copyrights (SCCR)
Even though there were strong rumours of having a repetition of last
year’s text, the draft text became a modification of the previous
year’s text. Unlike last year’s text the draft decision does
not contain an explicit mandate to continue work in the SCCR, especially
in the area of Broadcasting Organisations and limitations and exceptions.
The Chair’s draft decision proposed the following text.
“The WIPO General Assembly
(i)
took note of the information contained in document WO/GA/46/5; and
(ii)
took note of the statements made by delegations at the 46th session
of the WIPO General Assembly in 2014”.
Kenya, on behalf of the Africa Group, proposed an amendment to the
Chair’s text on the third paragraph. It proposed to direct the SCCR
to continue its work regarding the issue of broadcasting organisations,
limitations and exceptions for libraries and limitations and exceptions
for educational and research institutions and persons with other disabilities.
The Czech Republic on behalf of the CEBS Group stated that the content
of the proposed amendment was discussed during informal consultations
and it was not accepted. However it proposed an amendment to Kenya’s
amendment and stated that it can accept part of the Kenya’s proposal,
i.e to direct the SCCR to continue its work without any reference
to broadcasting organisations, limitations and exceptions for libraries,
and limitations and exceptions for educational and research institutions
and persons with other disabilities
Japan on behalf of Group B supported the Czech Republic and asked
delegates to focus on what we have in front of us instead suggesting
new language. It also proposed to finish the Africa Group’s paragraph
at the word “work” (without reference to limitations and exceptions).
Iran supported the Africa Group.
Brazil said that it deeply regretted that there is no agreement. It
further said that the proposed decision that comes from the Chair
does not give the necessary comfort. It reiterated its commitment
on the negotiations on broadcasting organisations as well as limitations
and exceptions for libraries and archives. It urged delegations to
fully recognise the issue of exceptions and limitations without prejudging
the outcome of the exercise. While extending its support to the amendment
proposal of the Africa Group, Brazil also made an alternative proposal
i.e. the decision language of the 2013 WIPO General Assembly decision.
Egypt expressed its concern on the unwillingness on the part of many
countries to engage constructively. It stated that there is real unwillingness
to engage on exceptions and limitations. It cautioned that WIPO “will
lose credibility in my country and other developing countries”. Egypt
called upon Member States that issues have to be dealt proportionally
in this organization.
While the Chair was proposing the adoption of the decision of “no
decision” Brazil made a last effort to avoid “no decision”. It
proposed again the text of the 2013 WIPO General Assembly Decision
that carried an explicit direction in the sub-paragraph (iii) to continue
the work. It reads: “… requests the Standing Committee on Copyright
and Related Rights to continue its work regarding the issues reported
on in that document.” However, this was rejected by Italy and
the Africa Group citing there is already an agreement to adopt “no
decision”.
External Offices (EO)
The lack of consensus emerged on the sequencing the process. Certain
Member States insisted that in the absence of a consensus on the general
principles for the establishment of EO there should not be any mention
on the number and location of EO in the decision.
On the other hand, the Africa Group stated that the understanding
from the beginning is that the two-step approach is a single package
i.e. first to finalise the general principles for the establishment
of EO and then the number and location of EOs. Therefore there should
be mention of further discussion on the number and location in the
decision and it accordingly made an amendment proposal.
[The draft decision circulated on 29 September at 5 pm contains the
following parts: 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.]
The Chair proposed a draft decision on 30 September as follows:
“The Assemblies of the Member States of WIPO and the Unions administered
by it, each as far as it is concerned,
(1) took note of the report of the Facilitator on the outcome of consultations
that were held during the 54th series of Assemblies meetings and of
the “draft Guiding Principles regarding WIPO external offices as attached;
and
(2) decided to continue open-ended consultations, under the guidance
of the Chair of the General Assembly, on the proposed Guiding Principles
and on the establishment of WIPO external offices with a view to finalizing
the Guiding Principles and all other outstanding issues for consideration
and recommendation by the PBC and decision by the General Assembly
in September 2015”.
The Republic of Korea expressed its regret on the absence of consensus
on guiding principles. It said that it does not agree with the demand
of number and location of EOs in the decision.
Pakistan said it wishes to see a two-step process; the first step
is to finish the guiding principles and then proceed to numbers and
locations.
Mexico said that it supports the draft decision and that given the
situation it is the only way to move forward.
China stated that it wants discussion on guiding principles as well
as number and locations and would like to see an inclusive decision.
It also said that it supports Africa about including number and locations
in this decision.
The United Kingdom expressed its support for the Chair’s decision
text. It said that the text reflects the current situation by
referring to ‘discussions’ not saying the topic of the discussions
so it is open.
Iran said it supports the statements of Pakistan and Korea and also
supporting the draft decision. According to Iran the first step
is to finalise and adopt guiding principles before moving to the number
and locations.
The German Ambassador who acted as the facilitator for the informal
consultations admitted to the existence of a two-step approach prior
to finalising the decision at the WIPO General Assembly. He
appealed to the Member States not to complicate issues and trying
to include details. At a later stage the Ambassador also proposed
an amendment to the Chair’s proposal in his national capacity on behalf
of Germany: addition of the word “subsequently” in the second paragraph
of the decision immediately prior to the words “all other outstanding
issues” to accommodate the concern of the Africa Group.
[Germany’s proposed amendment in bold: “(2) decided to continue open-ended
consultations, under the guidance of the Chair of the General Assembly,
on the proposed Guiding Principles and on the establishment of WIPO
external offices with a view to finalizing the Guiding Principles
and SUBSEQUENTLY all other outstanding issues for consideration
and recommendation by the PBC and decision by the General Assembly
in September 2015.”]
The closing remarks of various Member States expressed willingness
to engage to take forward.
(With inputs from Daniela Guaras.)
