The Federalist Society

Report on Day 5 of the Forty-third Assemblies of the Member States of WIPO

September 28, 2007

John S. Gardner

John S. Gardner, a Senior Director of the White House Writers Group in Washington, D.C., and former General Counsel of USAID, is representing the Federalist Society this week at the Forty-third Assemblies of the Member States of the World Intellectual Property Organization, which is meeting from September 24 to October 3 in Geneva. The meetings are expected to be dominated by the proposed adoption of the "Development Agenda" of WIPO , a proposal from the US and Japan to reduce fees paid by WIPO customers under the Patent Cooperation Treaty, and continuing controversy over the tenure of WIPO Director General Idris (for a summary of this, please see Claudia Rosett's article on National Review Online from September 23). For further background on WIPO's development agenda, please click here. Please note that any quotations here are based on notes from the simultaneous translations provided by WIPO and do not represent a particular nation's official text except where indicated.

Forty-third Assemblies of the Member States of WIPO
September 24 - October 3, 2007

After some preliminaries, Day Five began with a discussion of the protection of audiovisual performances; the General Assembly was asked to keep the item on the agenda of the next WIPO General Assembly in September 2008.  Mexico made a strong statement in support of the resolution and of protection for audiovisual performances generally.  Brazil, while having no objection to keeping the item on the agenda, stated that it wants to see “alternative approaches, a process by which all [the] different stakeholders have an opportunity” to provide input to the process through such means as open consultations with industry, NGOs, and Member States.  Portugal, representing the EU, sought an assessment by the Secretariat of how the issue had evolved to this point.  The resolution was adopted, but many observers doubt there will be significant progress in the coming year.

Next on the agenda Deputy Director General Keplinger introduced a report on the special sessions of the Standing Committee on Copyright regarding the proposed Diplomatic Conference on the Protection of Rights of Broadcasting Organizations.  As Keplinger reported, it became clear during the second special session that no conference to formally negotiate a broadcasting treaty could take place in 2007; the differences between Member States were simply too wide.  During informal discussions, it became evident that it would not be possible to reach an agreement on the objectives, specific scope, and object of protection to submit a revised basic proposal to the Conference as mandated by the General Assembly.  Instead, many Member States felt there was a need to take time to reflect on the sessions to determine how or whether progress could be made.

While no delegation spoke in favor of removing the item from the agenda of the Standing Committee on Copyright (SCCR), and the proposal was adopted, there were clear differences between the Member States.  Many developed countries favored the early convening of a diplomatic conference, while developing countries generally downplayed the issue   Australia suggested that it “might be time for the Secretariat to look at the idea to call in some experts to make presentations on the latest development in the technical means used by broadcasters” such as podcasts and the use of the Internet by traditional broadcasters.  While Australia noted the concerns of the African Group on webcasting, it was nevertheless “inescapable that traditional broadcasters are using the Internet as an adjunct to their main service.  The way they transmit their main service is the source of new technology.”  The United States did not address the Assembly on this issue.

Some developing countries wanted the treaty narrowly focused.  Algeria, representing the African Group, specifically declared that webcasting “cannot receive legal protection because developing countries are receiving all the negative effects of the digital divide.”  Instead, there “should be protection for signals leading to a balanced situation between rights holders and access for users.”  Algeria further called on the committee to keep on its agenda items concerned with the Development agenda, such as the use of broadcasting for educational purposes.  South Africa similarly stated that “access remains a fundamental principle . . . .  Any proposals that impact unfavorably on access to information remain unfavorable for South Africa,” in part because of the impact on basic constitutional rights.  In South Africa’s opinion, it was too early to discuss concluding a broadcasting treaty.  And given that the SCCR has been focused for ten years on the proposed broadcasting treaty, South Africa urged the committee to include issues connected with the Development Agenda, as did Chile and Brazil.  Brazil specifically called on the SCCR to consider “other issues:  public domain and access to knowledge [and] alternative licensing models” – a worrisome prospect for supporters of traditional copyright protection.  In Brazil’s view, any consultations “should strive to include the new stakeholders that operate in regard to broadcasting [and] should also look at the evolving trends and technologies in broadcasting as well as the public policy issues,” considering “the perspectives, views, and interests of developing countries.”

There were exceptions among the developing countries.  Costa Rica, Argentina, and Mexico each gave strong statements in favor of the issue.  India was “disappointed that differences remain in the documents” and noted that “the menace of signal piracy, to which India alone loses over $600 million, continues unabated.”  However, India also called for a narrower treaty, “confined to the protection of broadcasting and cablecasting organizations in the traditional sense.  Computer networks are not to be brought within the scope of the treaty, either directly or indirectly.”  India further suggested that a new set of documents be prepared for the SCCR based on the Development Agenda. 

Thus, lack of progress on the broadcasting treaty has effectively opened the way for the SCCR to concentrate its work more on matters connected with the Development Agenda.  Perhaps this would have been the case had the diplomatic conference actually been convened – something would have been put on the agenda – but the practical focus to some degree will likely shift away from the proposed broadcasting treaty, whether narrowly or broadly defined.

Next, the agenda moved to one of the most important items on the agenda of the Assemblies:  the adoption of the resolution on the WIPO Development Agenda and the establishment of the Committee on Development and Intellectual Property (CDIP).

A long list of states wished to address the Assembly on this, and no Member State spoke against the agenda item, which consists of 45 recommendations agreed at the fourth meeting of a special committee chaired by Barbadian Ambassador C. Trevor Clarke.  (The proposals can be viewed here.) Of these recommendations, 19 had been noted for immediate implementation, because they did not involve increases in human or financial resources.  These 19 include Proposals 1, 3, 4, 6, 7, 11, 12-19, 21, 35, 37, 42, and 44.  However, some delegations (and Ambassador Clarke) reiterated and cautioned the understanding that these were not in any sense to be prioritized over the others, and that the Assembly was committing itself to implementation of all 45 recommendations.  (Poland, for the group of central and eastern European countries, noted its expectation that if any staff or budget implications did arise from the 19 recommendations, the advice of Member States would be sought.)
 
Brazil called for a discussion of the “means – human resources and financial – for implementation of these recommendations and the [CDIP]” and for “adequate organization or reorganization within the International Bureau for providing adequate support for the implementation of the DA in the course of time.”  Other delegations echoed this call for financial and human resources allocations for the full development agenda (a subject that will doubtless also come up next week when the proposed biennial budget is discussed at the Assembly).  Brazil proposed an amendment to the resolution that the Committee on Development and IP will have two 5-day sessions annually, with the first convened in the first half of 2008 and that financing should be provided to representatives of developing countries and LDCs.  After an objection from the US that this language was too broad, the Secretariat clarified the amendment to read that financing for delegations would be on the same basis as in 2006 and 2007; i.e., five representatives funded from each of five regional groupings.  (Of course, any Member State may participate in the work of the Committee through staff based in Geneva; the CDIP is open to all Member States.)

Portugal stated its belief that a “balanced and effective IP system . . . could bring meaningful benefits for us all” and noted that WIPO “must not only provide technical assistance but must also promote [IP] protection in developing and LDCs.”  In the context, this was a clear reaffirmation of the importance of traditional IP protection.

China, in contrast, repeated its statement of earlier in the week that IP protection must “take into account varying levels of development of Member States and try to achieve a balanced approach, so we can achieve development objectives and give national flexibility to Member States.”  China saw these goals as “preconditions to assure that IP rights are a ‘power tool for growth.’” (Comment:  this phrase has been used by Director General Idris; it remains to be seen whether this was intended as a subtle signal of support for his retaining his post (see the discussion from Days One and Two for more on this.))  China believed that IP can “help bring about a more harmonious and balanced world”; the phrase is worth noting because of China’s own slogan of developing a more “harmonious” society, which is generally taken to mean reducing income inequality in the country.

Indonesia and Thailand supported the Chinese view, Indonesia stating that “to be effective, the IP regime should take into account development of Member States.  The one size fits all approach has the potential to prevent developing countries from getting benefits of IP system.”  Thailand called for preparation of a detailed work plan “to fully implement the agreed proposals and to mainstream the agreed activities into the different parts of WIPO.”  Thailand’s key interest here was “access to knowledge and technology and its dissemination to developing countries,” which in some contexts refers to efforts to gain access to patent or copyright-protected material without recourse to traditional IP protections, and specifically highlighted “protection of genetic resources” as an example.  Thailand further noted that IP was now “a cross-cutting issue,” as it is discussed in the WTO and WHO as well as WIPO, and called on WIPO to pay “close attention to proposals that require strengthening of relations with other UN agencies.”  (Comment:  Essentially, Thailand is arguing that WIPO should or does no longer have a unique competence as the UN specialized agency dealing with IP.) 

Other delegations noted that the Development Agenda was broader than simply the work of one committee.  For instance, Chile stated that “Just having a development agenda does not mean that all issues with a development aspect should be sent there;” it was not “a watertight compartment with an exclusive monopoly on all development issues.”  Instead, Member States should retain powers to send items to different committees, which (as discussed above in the broadcasting example) will mean that issues related to the Development Agenda will likely arise in the work of all WIPO committees in the future.

Colombia, for its part, noted that it was “very necessary to protect IP as well, necessary to have proper policy in place, otherwise [the proposals] could weaken IP protection.”  But the Development Agenda was a positive step, as the “credibility of the IP system will be further strengthened as a tool to further development and creativity with the Development Agenda in WIPO.”  Colombia was one of the few developing countries to focus on IP protection in its remarks on this subject.  The nation also noted its “major reservations” on the proposal on works in the public domain, as this referred to works that were no longer in fact protected, and its preference that the issue had been discussed in the Assemblies.

Following adoption of the Development Agenda resolution, debate began on the subject of the work plan for Patent Law Treaty.  Based on informal consultations, the Secretariat would prepare a report on the international patent system which should constitute a working document for a session of the Standing Committee on Patents (SCP) to be held in 2008.  The US “continue[d] to consider that proposals to limit the work of the SCP provide the best opportunity for achieving near-term agreement” and expressed its disappointment on the failure to agree a work plan.  Given the differences between Member States on the issue, the US would support WIPO having a report prepared but not offering recommendations; instead, the report should be submitted to the Member States for comments.  Canada made similar comments.  The resolution was adopted.

The day ended with a very brief session of informal consultations regarding the competing fee reduction proposals in the PCT Assembly.  Consensus was reached on requesting the International Bureau to prepare a study on the basis for future fee calculations and reductions (comment:  this wording may not be the precise language eventually placed in the resolution), and the group agreed to resume informal consultations on this issue on Monday on a suggestion of the EU Presidency.

A number of issues remain for consideration next week besides fee reductions, not least of which is the Program and Budget resolution and the report of the Friends of the Chair (discussed in the report on Days One and Two). 

Some Reflections

With today’s report, the daily coverage of the WIPO Assemblies will end with my return to Washington.  Please permit some parting thoughts. 

While the adoption of the Development Agenda did not include a formal change to WIPO’s mandate in Articles 3 and 4 of the WIPO Convention “to promote the protection” of intellectual property, one may be sure that some parties and observers will continue to argue for a broader interpretation of that mandate.  We have seen in another context (the Intergovernmental Working Group at WHO discussing the implementation of the report of the Commission on Intellectual Property, Innovation, and Public Health) how a committee can significantly broaden a mandate given to it by an Assembly of all Member States. 

The key will be to ensure that the new committee stays within WIPO’s existing mandate, as Member States have agreed – and the traditional interpretation of that mandate, as it has been understood by WIPO.  Otherwise, as Mark Schultz wrote in his report on the June 2007 Development Agenda Meetings, there would now effectively be a presumption against intellectual property protection and that the benefits of it would have to be shown to exceed the costs.  (On this point, see Recommendation 15 of the Development Agenda:  “Norm-setting activities shall . . . take into account different levels of development [and] take into consideration a balance between costs and benefits . . . .”)   There are numerous mentions in the Development Agenda recommendations of the use of “flexibilities,” such as those under the TRIPS Agreement and how developing countries can use them.  Will the Development Agenda expand their number?  Consider Recommendation 45:  “To approach intellectual property enforcement in the context of broader social interests and especially development-oriented concerns”; the Recommendation continues to quote the language of Article 7 of the TRIPS Agreement about protection and enforcement of IPRs “in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

It is also worth noting Recommendation 37:  “Upon request and as directed by Member States, WIPO may conduct studies on the protection of intellectual property, to identify the possible links and impacts between IP and development.”  Essentially, this gives the agency – on recommendations adopted by Member States, presumably in the Assemblies – to conduct studies such as that of the WHO-linked Commission on Intellectual Property, Innovation, and Public Health in other industries or sectors.  Which sectors are likely candidates – telecom, energy, agricultural production?  Or could the studies be directed towards specific types of intellectual property protections, such as process patents or software patents or even particular laws of Member States granting high levels of intellectual property rights?

But consider this:  WIPO’s own introductory brochure “What is intellectual property?” defines IP in strong terms:  “Intellectual property rights are like any other property rights – they allow the creator, or owner, of a patent, trademark, or copyright to benefit from his or her own work or investment.  These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which sets forth the right to benefit from the protection of moral and material interests resulting from authorship of any scientific, literary, or artistic production.”  This is a classic statement of intellectual property law in the international context. 

Further, the brochure continues with this:

“Why promote and protect intellectual property?  There are several compelling reasons.  First, the progress and well-being of humanity rests on its capacity for new creations in the areas of technology and culture.  Second, the legal protection of these new creations encourages the expenditure of additional resources, which leads to further innovation.  Third, the promotion and protection of intellectual property spurs economic growth, creates new jobs and industries, and enhances the quality and enjoyment of life.

“An efficient and equitable intellectual property system can help all countries realize intellectual property’s potential as a powerful tool for economic development and social and cultural well-being.  The intellectual property system helps strike a balance between the interests of the innovator and the public interest, providing an environment in which creativity and innovation can flourish, to the benefit of all.”

In other words, in the traditional view, the IP system itself provides that balance between innovators and the public interest.  How that balance is calculated of course varies among Member States and among the types of works protected, but the basic thrust of a high level of protection for intellectual property, reflected itself in WIPO’s mandate, remains clear.  Just to take one example, the U.S. Constitution’s grant of copyrights “for limited Times” reflects a balance of interests.  Copyrighted material eventually comes into the public domain; exclusive licenses on patents expire.  Attempts to shift the balance in a different direction such as have been suggested this week, therefore, will inevitably tend to remove incentives for innovators, leading to a loss in innovation – a loss no less severe because it is incalculable.  It will be the duty of Member States going forward to understand the dangers that chilling innovation poses, not only to innovators themselves, but quite literally to the public interest.


The Federalist Society