Oct 022014
 

K.M. Gopakumar[Reposted from TWN News, Link] 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.)

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