[WSIS CS-Plenary] IPJ: US & Japan Upset Consensus for Development Agenda at WIPO

[Robin Gross]

Over 129 Public-Interest NGO's Call for WIPO Reform:
http://www.ipjustice.org/WIPO/NGO_Statement.shtml

.........


IP Justice Notes and Summary of Day 3 (22 July) at WIPO Development 
Agenda Meeting in Geneva

US & JAPAN UPSET CONSENSUS FOR DEVELOPMENT AGENDA AT WIPO:
No Substantive Recommendations to Reform WIPO Will Go to General Assembly

In the late afternoon of final day of the third Intercessional
Inter-governmental Meeting (IIM) for a Development Agenda at WIPO, the
plenary meeting resumed after informal consultations among Member States
most of the day.  The informal consultations had resulted in an
agreement between all countries – except the United States and Japan --
to recommend to the General Assembly that the IIM process should be
extended for one additional year to continue to examine a Development
Agenda for WIPO.  The US and Japan refused to allow the IIM Development
Agenda discussions to continue and instead insisted that all development
issues should be dealt with by the ineffective Permanent Committee on
Cooperation for Development Related to Intellectual Property (PCIPD)
Committee.  PCIPD is an existing WIPO technical cooperation body that
meets once every two years and has no oversight role over the
substantive work of WIPO committees, such as the copyright or patent
committees.

In October 2004, the WIPO General Assembly adopted a resolution to
incorporate a Development Agenda into WIPO’s work by reforming its
policies and practices that favor wealthy IP-exporting nations over
developing countries.  At that time, a proposal was submitted by a group
of 14 developing countries, the Group of Friends of Development (FoD).
The proposal included substantive reforms that WIPO should consider to
become more Member-driven, transparent, and inclusive of the needs of
developing countries.

The General Assembly decided to hold a series of IIMs to discuss this
proposal and any others submitted by Member States.  In total there were
3 three-day IIMs: in April, June, and July 2005.  The US and Europe were
successful in tying up the first one and a half IIMs on procedural
issues, so the FoD proposal or any other substantive discussions could
not begin until the middle of day 2 of the June IIM.  This left only 4 ½
remaining days of discussions on how to reform WIPO to incorporate a
Development Agenda to its work.

WIPO proceeds according to “consensus”, meaning all countries must agree
or no action can be taken.  Without the US and Japan agreeing with the
all of other countries to continue the IIM Development Agenda process,
the body could not make that recommendation to the WIPO General Assembly
in its report due 30 July 2005.  Despite the overwhelming majority view,
the only decision that could be taken was to inform the General Assembly
that a consensus could not be reached, and to simply forward the
summaries and discussion notes from the three IIMs to the General
Assembly for its Fall 2005 meeting.

Below are the IP Justice notes on this final debate to recommend to the
General Assembly that the IIM discussions on a Development Agenda be
allowed to continue.

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22 July 2005 ~ Geneva
IIM/3 For a Development Agenda at WIPO

CHAIRMAN RIGOBERTO GAUTO VIELMAN OF PARAGUAY:
All countries agree that some form of discussion must continue.

However, consensus could not be reached regarding how to continue the
discussion.  There are two proposals:
1.	Renew the IIM process and continue existing discussions.
2.	Continue all work regarding a Development Agenda in the PCIPD.
The majority of countries prefer to continue work within the IIM
framework, however some delegations refuse to accept that proposal.  So
perhaps a compromise solution is to let General Assembly decide how to
work in future.

There are also proposals to make a factual report on what took place in
the meetings, reflecting the work we would like to do without stating
where that work would take place.

Now, we should allow formal concluding remarks and decide the format for
our report to the General Assembly.  I open the floor to Member States.

ARGENTINA:
On behalf of the Group of Friends of Development (FoD), we are sorry
that although the majority were agreed, there will be no positive
outcome because of a few delegations against the proposal.  Most
delegations agree that the IIM process should be renewed.  The IIM has
not finished examining all proposals submitted and new proposals are to
be submitted.  Forwarding work to PCIP is not acceptable because it is
just one of proposals on the table and there is no agreement on that
proposal.  So this proposal should continue to be looked at with other
proposals in the spirit of maximum flexibility.

The FoD proposal is that the IIM recommends that the WIPO General
Assembly should renew the process of IIM with a view to addressing
effectively the existing and any new proposals to establish a
Development Agenda for WIPO.  We propose 3 new IIMs, ending in July 2006
and a report back to 2006 General Assembly on these proposals.

This is minimum proposal to express to General Assembly.

INDIA:
We are far from concluding our process.  No single proposal has received
much discussion.  The logical thing would be to continue our
discussions.  It is customary in the past to continue our discussions.
We are surprised about the objection.  Since no substantive issue is
involved, there should be no difficulty.  We are surprised that 1 or 2
delegations had reached a point where a substantive outcome could be
reached – the remittance of development issues to PCIPD, which is one of
the substantive proposals.  This is a substantive decision and we had
not yet reached any substantive proposals.  It is baffling to change
horses mid-stream.  Rather, we are changing from a horse to a mule
mid-stream.  We should roll over the IIM process for 1 year.

SRI LANKA:
Sad to hear even when large majority of views converging to continue IIM
process, full consensus was not achieved.  These are historic meetings –
the 1st time developing countries stimulate a debate on development at
WIPO.  Development is being negotiated by colleagues in NY.  We thank
the African Group for reminding us the recent Doha Agreement for WIPO to
adopt a Development Agenda.

We fully support the Brazilian proposal.  WERO is in line with recent
trends in many UN and international organizations (IMF).
Public-interest NGOs should participate.  Concern for software patents –
there are many views on harmonization. WIPO should organize panels on
IPR on development and free and open source software.

PAKISTAN:
We wish to put a few things in perspective: this organization (through a
General Assembly decision) gave a mandate for IIMs to consider FoD
proposal and others that may emerge – to examine them and then to come
up with recommendations.  First half of IIM process was a procedural
discussion on how to proceed – it wasted time.  Only mid-way through of
2nd IIM, we embarked on substantive discussion.  List of proposals has
grown, even at this IIM.  Only held a preliminary exchange of views,
which can in no way be viewed as an examination as mandated.  The work
has not been done and now we are asked to dismantle our work.  This
demonstrates a lack of seriousness with regard to issue of development –
sad.  Conspicuously important is the lack of seriousness.  Even at this
late stage of deliberations – our delegation still has hope that work is
in progress.  Our work has not been discharged properly –we must let it
continue.  A recommendation has to be passed on to the General Assembly.
  Only logical recommendation is to continue our work.  We have a
consensus minus a few situation.  This work should be allowed to
continue.  Pakistan is speaking on behalf of southern countries.  We
support continuing the IIM process – at a minimum, it is only logical.
The African proposal has not even been considered yet.

UNITED STATES OF AMERICA:
There is a positive broad agreement to continue development discussions.
  But these discussions should be structured within PCIPD – there is no
limit on its mandate and a new mandate could be provided.  IIM process
has been useful for preliminary exchange – not in depth examination of
all proposals.  IIM was a compromise.  FoD called for working Group to
establish a Development Agenda.  Many agreed that PCIPD should be the
forum.  IIM was a compromise.  Our report should be factual and General
Assembly should decide how to go forward.  IIM discussions could
continue for 20 years – IIM is not the best way to continue.  The US
proposal was only proposal not to have prejudice on outcome.  We should
keep the good will going.

We propose the report should recall the decision to initiate the IIM,
list all proposals and note that others may come, and note our full
agreement to continue discussions some where.

WIPO is demand driven and not limited to technical assistance.

The key proponents of the Development Agenda have received 456
development cooperation activities in a report by WIPO International
Bureau.  We are trying to show that WIPO has not ignored development
concerns.  The development debate has profound misunderstandings.

MOROCCO:
We represent the African Group position – support the renew mandate of
IIM.  All proposals should be dealt with in the same way.  Any other
proposal that would not be along those lines is not treating all
proposals with equal footing.

CHILE:
We support the FoD proposal made by Argentina.  It is similar to the
African Group proposal and also to what the European Community proposed
– to go on with this IIM process.  We want our proposal treated in the
same way as others.  We have had a fruitful discussion and it should not
be stopped.  PCIPD is not the right forum.  Some delegations that
originally wanted PCIPD are flexible and want IIM to continue.

JAPAN:
The 3 IIM sessions were useful, fruitful, and significant.  We should
continue our debates.  However IIM is process of compromise of General
Assembly 2004.  IIM’s main function is to make report by end of 30 July.
  Such report should be factual.  It is not appropriate for IIM to
decide to continue its extension – that should be General Assembly
decision [IPJ note: it is only a recommendation to General Assemble to
continue, not a decision to continue, so Japan’s statement makes no
sense].  Bahrain and African proposals were not discussed.  These
proposals should be treated properly – we can decide at next General
Assembly.  We are concerned about the extension of IIM is related to
process, not substance.

BRAZIL:
It was not possible to achieve consensus in informal consultations.  We
should build upon the majority view of members.  There is ample
agreement to extend IIM for 1 year to enable all proposals consideration
adequately and on same footing.  FoD presented substantive document on
Development Agenda, it was not fully considered, up until now.  Even
proposals put forth by developed countries were not discussed and there
is no agreement on those proposals.  There has been no negotiation on
anything yet.  Important thing is to work on the basis of an outcome –
which is not reached yet – it is essential to continue.  To shift our
forum in mid-course as a few Members have insisted, diminishes
development concerns.  Concerns should be further developed in all of
WIPO’s activities – and not prejudging the forum in which Development
Agenda should continue to be discussed; the only way for proposals to
have the same footing is in IIM forum.  IIM is not permanent body.
PCIPD is only one of many proposals put forward.  It is not appropriate
to adopt one among many proposals submitted.  There is no agreement on
what PCIPD should or should not do.  We do not want to pick and choose
particular outcomes for early harvest.  The report should go forward
with IIMs and majority favors IIMs in current process for 1 more year.

MEXICO:
It is difficult to reach conclusion, and better to establish factual
report, state various proposals and intention of other proposals to be
submitted.

ARGENTINA:
Not sure we understood what is meant by factual report.  Summary of
three meetings held so far sent to General Assembly?  Talking about new
type of report?  What do you mean?

We need to correct inconsistencies: last year annex presented to General
Assembly including series of decisions to be adopted.  One decision was
for working group to review all remaining issues – deal with proposals,
but not decide on.  Working group is not supposed to be a permanent
body.  The claim that we said “20 more years of discussions”, is taken
out of context.  We need to limit the process in time – that is why we
made that comment – we need to focus on process and its implementation.
  Developing countries do not want process to continue for many years.

CHINA:
Continuing the IIM format is preferred.
1.  IIMs were decided by general assembly.  This meeting has not
accomplished its mandate yet.
2.  PCIPD is one of the contents of the proposals at this meeting.  IIM
has not discussed substantive matters.  Before this, we cannot make a
decision of this proposal.

SOUTH AFRICA:
Need clarification of working group – deal with implementation mechanism
of principles and action points as Argentina has just pointed out.  Some
delegation expressed concern that it would go on indefinitely and hence
proposed the Development Agenda work be dealt with in PCIPD.  But an
indefinite continuation is not in the interest of developing countries –
we need outcomes that benefit developing countries.  Discussions will
continue indefinitely if sent to PCIPD, for example, discussions there
that have no benefit for developing countries deal with genetic and bio
resources.  The African Group proposal needs to be discussed within a
renewed IIM.

BOTSWANA:
We endorse the Moroccan proposal.  We took the floor to register our
disappointment that a crucial element of development seems to have
attracted vagueness as to where the organization is heading.  It is only
logical to take the matter to General Assembly for guidance.  The
factual report should say we are not happy with injustice and treatment
to the African proposal.  The African Group proposal should be discussed
as others should be discussed.  And it should be discussed in same
manner and structure as others.  We do not want to get into PCIPD, for
the same reasons why others do want the PCIPD.  All countries and all
proposals should be treated with equality.  There should be same
privileges for all proposals.  This IIM body should continue to discuss
the issue of development.

ALGERIA:
We support the Moroccan proposal made on behalf of the African Group.
  All proposals should be discussed in an open way.  Our intention is
not to make IIM a standing committee.  Developing countries do not have
an interest in prolonging these discussions.  There is at least one
proposal that has not benefited by the right to be before General
Assembly as other proposals.  Our group is deprived of the right to
discuss our proposal.

COLOMBIA:
Need thorough discussion of each proposal – this justifies continuing
IIM format, which is the appropriate forum for achieving the progress we
hope for.  A new mandate for a meeting should concentrate on consensus
building on the proposals.  Then in one year we can take to General
Assembly a real agreement that the 2006 Assembly could adopt and
approve.  We support Argentina’s recent proposal on behalf of FoD.  The
USA proposal is one in a package of proposals.  There is no consensus to
give the responsibility of Development Agenda to PCIPD.

SENEGAL:
We support the Moroccan proposal on behalf of the African Group – it
sums up the discussion.  The mandate of this inter-governmental body is
in favor of its renewal.  On principle, we want all proposals dealt with
on equal footing.  Anything else would mean no equal treatment.  It is
practical to continue our discussion in this forum.   Vast majority is
in favor of renewing IIM’s mandate.  Our duty to advise General Assembly
of what actually happened.  There are proposals which have not been
given appropriate treatment.  Only just and fair for General Assembly to
see them as well in factual report.  The list of all proposals in annex
to Chairman’s Summary of IIM2 – does not contain African group’s
proposals submitted yesterday.  Our duty to make this known to General
Assembly.

BOLIVIA:
We support Argentina’s proposal on behalf of the FoD.  Clarify issue of
PCIPD – Traditional Knowledge, Genetic Resources & Folklore Committee –
there was discussion for 8 sessions and no outcome – no concrete
solution.  Developing countries are frustrated at those meetings (to put
it mildly).  We don’t want to run in same situation with PCIPD.  Here,
only 1 or 2 delegations are exception.  Sending to PCIPD would favor
only some of proposals.  WIPO’s credibility would be reduced if
discussions were sent to PCIPD.  Millennium development goals should be
supported.

EGYPT:
[IPJ note: Gives long list of Member States in support of FoD’s proposal
to recommend renewing IIM].  This reflects frustration of inability to
unanimously agree on how to continue process which has not fulfilled its
mandate.  Very few delegations favor not continuing in IIM.  In response
to Japan’s point – what we are discussing is our recommendation to
General Assembly – not deciding on behalf of General Assembly.  It would
be up to General Assembly to adopt recommendation or decide otherwise.
IIM has been established as an interim session.  IIM is not and should
not be a permanent body – that would undermine our objectives to
establish Development Agenda for WIPO.

CANADA:
All proposals need to be explored on equal footing.  We have been
frustrated on important matter of process.  Consensus can be reached at
2005 General Assembly on relationship of development and Intellectual
property.

IRAN:
Compromise of IIM has not finished work. Process is all that has been
discussed.

NIGERIA:
We support the African Group – and should continue IIM process to
logical end.  Development matters are crucial.  We are very strongly in
favor of continuing IIM process.  In reference to US delegation – there
is merit in 1 or 2 things they say.  List all proposals and new ones for
full discussion by committee.  Important to have structured discussion.
  No result after 3 meetings because we focus on process and had no
substantive discussions.

INDIA:
Chair, one remark you made alarmed us at prospect of having to be here
until tomorrow.  Before we had to spend 3 days working on a summary.
Optimistic at prospect and not necessary.  We have record of all 3
discussions.  We ask if the 2 delegations opposed to continuing IIM
process would object to having their names mentioned as those opposing
IIM in the report?  [IPJ Note: This is the USA and Japan that are opposed].

ARGENTINA:
We support India’s proposal.  A consensus is based on a majority.  The
majority here is quite obvious among members.  This method has already
been used in the past when delegations experience difficulties.  We need
more precise numbering of proposals – provide an updated list.

UNITED KINGDOM:
I speak on behalf of the European Community and 25 Member States.  There
is no full consensus on the way forward.  These are historic set of
discussions at WIPO.  It is late.  We are tired.  Our time spent in IIMs
has not been wasted.  Situation is ripe to allow time for further
reflection leading up to General Assembly.  We should return to the
question at the General Assembly.  The best way forward is for you to
provide a factual report along the lines of previous IIMs and leave it
up to General Assembly on how to proceed.

UNITED STATES OF AMERICA:
We thank India for bringing up the report.  The report should be a short
factual summary or the full minutes of IIM/3 to go forward.  Not just
two countries that want to leave it up to General Assembly.

SWITZERLAND:
A recommendation should be after the General Assembly.  It is unclear
where our work will continue.  This forum should leave choice of where
to go forward up to General Assembly.  You should draft a factual report.

SENEGAL:
Include 16 pts.

BRAZIL:
Wanted to include transfer of technologies.  Report must be approved by
members of IIM.

INDIA:
How can UK’s proposal amount to a report of IIM?  How is that linked to
what the delegate of Brazil said?   How could the General Assembly take
a decision on forum that would not amount to a decision of this IIM?
When Switzerland says ‘we leave it to the General Assembly’, if that
decision is not the IIM, then let us leave the option of PCIPD to
General Assembly.  When we leave the decision open, we say PCIPD should
continue to be option for General Assembly – that is not what reflects
the view of the Member States.

JORDAN:
IIM option was supported by Member States.  PCIPD was also supported.
We had mandate for one year only of IIM.

CHAIR:
I am going to have to think about an objective way to present something
to General Assembly.  We need a few minutes to think of something.

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MORE INFO ON WIPO DEVELOPMENT AGENDA MEETING AT:
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