WIPO at Crossroads: Results of the General Assembly 2013
This article by the South Centre gives a summary and brief analysis of the outcome of the General Assemblies of the World Intellectual Property Organization (WIPO) in September 2013 and the Extraordinary Session in December 2013.
In 2007 a Development Agenda (DA) was adopted in WIPO. The aim was to change the institutional culture of WIPO towards a more balanced approach to intellectual property protection, weighting the interests of right holders against the public interest. This requires introducing a development orientation to the WIPO activities such as norm-setting, technical assistance and capacity building. WIPO, as a United Nations specialized agency, has a central role to play in ensuring that intellectual property rules help countries to achieve their development goals, and not hinder their development prospects.
These broader goals of the DA initiated by developing countries should remain the benchmark for evaluating progress for its realization in WIPO. After four years of discussion, the agreed process for the implementation of the DA took the form of a set of 45 painstakingly negotiated recommendations. A single minded focus on this process risks overlooking the broader DA purpose.
There is evidence of some progress towards a DA in WIPO. The best example is the conclusion in June 2013 of the Marrakesh treaty on limitations on exceptions to copyright to facilitate access to copyright protected print or audio works for people who are blind or have other print disabilities. But WIPO has come short of making necessary substantial institutional reforms and incorporating a development orientation in all areas of WIPO’s work.
The 2013 WIPO General Assembly is an indication of the increased interest of developing countries in shaping the international IP system, and the slow pace of transformation within WIPO. Important issues that the Assembly was to decide upon included the adoption of the Program and Budget for the 2014-15 biennium, WIPO governance reform, the process for establishing external offices, and defining a work plan to finalize an international legal instrument/s on genetic resources, traditional knowledge, and traditional cultural expressions.
The Assemblies 2013
The Fifty-First Series of Meetings of the Assemblies of the member States of WIPO (the 2013 WIPO Assemblies) took place from 23rd September to 2nd October 2013 at the International Conference Center Geneva (CICG), with the participation of 186 member States and observers.
The WIPO Assemblies include the main decision making bodies of WIPO which are the General Assembly and the WIPO Coordination Committee, and the nineteen assemblies and other bodies of the member States of WIPO and of the Unions for various Treaties administered by WIPO. These meetings bring together WIPO’s member States, allowing them to take stock of the progress in the organization’s work and to discuss future policy directions.
Last year’s session of the WIPO Assemblies had a particularly heavy agenda with a number of key issues forwarded to the Assemblies for decision making from the 21st session of the Program and Budget Committee (PBC) held in September which had ended in deadlock on a number of items, including the approval of the Program and Budget for the 2014/2015 Biennium and the establishment of new external WIPO offices. The Assemblies also had to decide, among other things, on whether to renew the mandate of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), whether to convene a Diplomatic Conference for the adoption of a Design Law Treaty (DLT), and also to take a number of decisions relating to the work program of the Standing Committee on Copyright and Related Rights (SCCR).
However, despite spending most of the time in informal consultations, the General Assemblies were unable to reach consensus on all the agenda items. The Chair, Amb. Päivi Kairamo of Finland, proposed the suspension of the WIPO General Assembly citing the inability to complete the business prior to the midnight of 2nd October. She announced that an Extraordinary Session would be convened in December where decisions on a number of outstanding issues will be required including the approval of WIPO’s Program and Budget for the next two years.
The Assemblies had also opened with some controversy regarding the convening of the WIPO Forum 2013 with the theme “From Inspiration to Innovation: The Game-Changers” during the afternoon of the 2nd day of the Assemblies. There had been no prior Member State approval regarding the convening of this Forum. The Development Agenda Group (DAG) which is a group of developing countries in WIPO said that although parallel events were important, “they should not affect the substantive discussions among member states unless there is a decision on this subject.” In similar vein, the African Group said that any such future forum should be held on the sidelines of the Assemblies.
Summary of Key Decisions and Discussion Points during the 2013 WIPO General Assemblies
Adoption of the Proposed Program and Budget for the 2014/15 Biennium
The session of the Program and Budget Committee (PBC) in September 2013 had recommended to the WIPO Assemblies the approval of the Program and Budget for 2014/2015 subject to a number of key decisions including on the opening of new WIPO External Offices and how the WIPO Global Challenges Division reports to member states. Despite intensive informal consultations and the circulation of a draft decision, the 2013 WIPO General Assemblies was unable to adopt the proposed Program and Budget due to the suspension of the Session at midnight of 2nd October.
In December 2013, an Extraordinary session of the WIPO Assemblies was held to further consider this item. The Extraordinary session made a decision to approve the Program and Budget subject to the following changes:
(1) The target for program 2 – trademarks, industrial designs and geographical indications – has been reformulated as a possible diplomatic conference for the adoption of a Design Law Treaty.
(2) The target for program 4 – traditional knowledge, traditional cultural expressions and genetic resources – has been reformulated as the adoption of an international legal instrument(s) by a possible diplomatic conference.
(3) In respect of program 20 – external relations, partnerships and external offices – a reference to establish 5 new external offices (in China, the Russian Federation, the US and 2 offices in Africa) was deleted.
(4) 0.6 million CHF was allocated as non-personnel resources for establishing two external offices in China and Russia for which contracts had already been signed.
(5) 0.9 million CHF was provided as unallocated non-personnel resources for possible new external offices that may be established.
(6) It was also decided that program 18 on IP and Global Challenges will report to the 20th session of the Standing Committee on the Law of Patents and the 13th session of the Committee on Development and Intellectual Property on the patent and development related aspects of its activities respectively.
The outstanding elements in the Proposed Program and Budget for 2014/2015 from the September session of the Assemblies included:
New WIPO External Offices (Program 20):
The session of the PBC had been unable to reach agreement on the establishment of new WIPO external offices on the basis of a proposal made by the WIPO Secretariat. The Secretariat’s proposal called for five new offices to be established, namely in China, Russia, United States and two in Africa. (There are currently 3 WIPO external offices in Japan, Brazil and Singapore.) However, during the PBC, concerns were raised both by developing and developed countries regarding the lack of a common transparent process, the need for a member state driven process and for overarching guiding principles for the selection of new offices. In addition, some member states said they had not been properly consulted and expressed concern that their regions were not included in the Secretariat’s proposal.
In parallel, however, the Coordination Committee during the Assemblies had already been transmitted two proposed agreements to establish new external offices of WIPO for approval: 1) Agreement of WIPO with the government of China 2) Agreement of WIPO with the government of Russia.
During the Assemblies, member states including Chile, Mexico, Panama, Peru and India also signaled their interest in the opening of WIPO offices in their countries.
The draft decision resulting from informal consultations included guiding principles for the external offices under the heading of (i) the transparency of the procedure in setting up WIPO external offices; (ii) rationale for establishing external offices and their purpose; (iii) financial sustainability and budget neutrality; (iv) geographical aspects/location aspects and (v) External Offices accountability/reporting. It also included India and the Latin American and Caribbean Region in addition to the five locations/regions for External Offices already proposed by the Secretariat.
The draft decision had not been approved by the WIPO General Assemblies in September and this item was further discussed in the Extraordinary Session in December. However, the differences on the substance of the guiding principles for external offices could not be resolved and the Assembly decided to continue open-ended consultations on the proposed guiding principles and the establishment of new external offices. This issue will be presented for consideration and recommendation by the PBC and approval by the General Assembly in 2014.
Trademarks, Industrial Designs and Geographical Indications (Program 2):
During the session of the PBC, member states had also been unable to reach consensus on whether there should be a target of a Diplomatic Conference for the proposed Designs Law Treaty (DLT). During discussions, the issue was linked with the work undertaken in the IGC (Program 4) with developing countries calling for “equal treatment” on both the issue of IGC and DLT.
The draft decision circulated in the Assemblies, shows that the target for Program 2 is the “Adoption of a Design Law Treaty by a possible Diplomatic Conference”.
The draft decision was approved by the Extraordinary Session of the Assemblies in December.
Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources (Program 4):
As with Program 2, the issue at hand was whether to have a target of a Diplomatic Conference for TK, TCEs and GRs as advocated by most developing countries. However, Group B which represents developed countries had expressed reservation regarding the progress made on the texts in the IGC and maintained that the target of a Diplomatic Conference was too premature. The draft decision circulated to the Assemblies included a target of “Adoption of an international legal instrument(s) by a possible Diplomatic Conference”.
The draft decision was approved by the Extraordinary Session of the Assemblies in December.
IP and Global Challenges Program (Program 18):
During the PBC, the DAG had raised concerns regarding the lack of formal reporting by the WIPO Global Challenges Division which deals with issues of particular importance for developing countries including climate change, public health and food security. DAG, in particular, had called for the establishment of a reporting mechanism whereby the Global Challenges Division would report on its work to the Committee on Development and Intellectual Property (CDIP). This was resisted by Group B who said that the appropriate committee for the Global Challenges Division to report to was the PBC.
The draft decision paragraph on this issue requests the Global Challenges Program to inform the member states at the 12th session of the CDIP on the development related aspects of its activities and to inform the member states at the 20th session of the Standing Committee on Patents (SCP) on the patent related aspects of its activities.
The draft decision was approved by the Extraordinary Session of the Assemblies in December.
Proposed Definition of “Development Expenditure” in the Context of Program and Budget
Another item forwarded to the Assemblies from the PBC due to lack of consensus was on the proposed definition of “development expenditure”. A proposal by the Chair of the PBC has been on the table since 2012 regarding a revised definition of “development expenditure” which would more appropriately reflect the allocation to development oriented activities by WIPO. DAG, in its statement, noted that it was important that “member countries can count on an appropriate index that identifies budget allocations that are aimed at bridging the knowledge gap between developed and developing countries.”
Decision: After informal consultations on this agenda item, the Assemblies decided that member states should continue informal consultations with the view to finalizing the definition of “Development Expenditure” for the next session of the PBC and in time, for the preparation for the Program and Budget in 2016/17.
Governance at WIPO
The issue of WIPO Governance has been discussed in the PBC since 2011, however, the PBC session in September 2013 decided to send it to the General Assembly for a decision. The PBC had been in particular, unable to approve an African Group proposal aimed at improving the governance structure in WIPO and making its activities more efficient, participative and transparent.
During the GA, the African Group and DAG circulated a proposal which was put forward as the basis upon which the discussions on WIPO Governance should proceed. The proposal directed the General Assembly to request the Secretariat to organize a two-day meeting to discuss the Joint Inspection Unit Report that made many suggestions for improvements at WIPO, the proposals submitted by member states and make recommendations to the next session of the PBC.
Some of the key governance issues identified in the proposal include improving the work of the PBC, improving the work of the coordination committee, improving interaction between member states and the independent advisory oversight committee, improving interaction between member states and the external auditors, and establishing a fair and efficient mechanism to select chairs and vice chairs of WIPO bodies.
However, Group B said that this issue is “at the heart” of activities at WIPO, and that the African Group proposal “contains elements that have been debated over and over to no avail.”
The African Group/DAG proposal was not adopted by the General Assembly.
CDIP and the Development Agenda
During the General Assembly, the DAG, the Africa Group and several other developing countries expressed concerns that the mandate of the Committee on Development and IP (CDIP) has not been fully implemented. Developing countries called for a General Assembly Decision to reinforce full implementation of all three pillars of the CDIP mandate.
One of the issues of concern expressed by developing countries was the non-implementation of the third pillar of the CDIP mandate, which establishes that the Committee should discuss IP and development related issues as agreed to by the committee and those decided by the GA. DAG and others have long tried to establish a permanent agenda item on this issue in the CDIP to no avail due to resistance from other member states.
The other issue relates to the Committee on WIPO Standards (CWS) and the Program and Budget Committee (PBC) to be considered as “relevant WIPO bodies” for purposes of reporting as required by the Coordination Mechanism and which implements the second pillar of the CDIP mandate. The mechanism was established in 2010 for relevant WIPO bodies to annually report on their contribution to the implementation of DA Recommendations.
During the General Assembly, the DAG requested informal consultations on these items. It underlined that “full implementation of the Development Agenda depends specially on a cultural change within WIPO as well as in the framing of intellectual property issues”. This was initially objected to by the US and Group B who referred to “a full agenda” and that the CDIP was the appropriate forum for discussion for these issues. It was also stated that it was up to the WIPO Bodies themselves to determine if they were “relevant” for the purposes of the Coordination Mechanism.
Other issues raised by developing countries under this agenda item related to concerns regarding the provision of WIPO Technical assistance, the postponement of the conference on IP and Development and the need for the WIPO Global Challenges Division to report to the CDIP.
Decision: The result of informal consultations was a decision which called upon the CDIP to discuss implementation of the CDIP Mandate and the implementation of the coordination mechanism during its next two sessions and report to the GA in 2014.
This, in effect, returns the discussion to the CDIP. The 12th session of the CDIP was held from November 18 to 21, 2013.
IP, Genetic Resources, Traditional Knowledge and Folklore
One of the decisions before the WIPO General Assembly of great consideration for developing countries was the renewal of the mandate of the IGC which undertakes work in relation to IP, genetic resources, traditional knowledge and traditional cultural expressions. The General Assembly decided to renew the mandate of the IGC for the 2014/2015 biennium and instructed the IGC to hold three sessions in 2014 and to finalize the legal instrument(s) for the protection of GR, TK and TCE in 2014 when it reports to the GA. The IGC can also consider the need for additional meetings.
The schedule of meetings of the IGC would include:
(i) the next IGC in February 2014 with a focus on Genetic Resources for five days;
(ii) March-April 2014, a focus on Traditional Knowledge and Traditional Cultural Expressions for ten days;
(iii) July 2014, a cross cutting session and stock taking for three days and
(iv) September 2014 for the WIPO GA to finalize the text(s); take stock of and consider the text(s), progresses made and decide on convening a Diplomatic Conference.
At the beginning of the first meeting in February a meeting of Ambassadors/senior capital-based officials was held “to share views on key policy issues relating to the negotiation, to further inform/guide the process”. The IGC may decide to hold further such a meeting during the session in July.
Although developing countries welcomed the renewal of the mandate, a concern regarding the lack of political will was raised. The divergent views of the member states on the nature of the document to be produced, the maturity of the text etc. came out in the open during their interventions. In particular, the developing countries (GRULAC, India, African Group) reiterated the need for a legally binding instrument or instruments. They also noted that substantial progress had been made across all three texts and that the level of maturity of the texts was appropriate for a Diplomatic Conference in the next biennium (2014/2015).
However, the developed countries (Australia, EU, Japan, USA, etc.) argued that due to the complexity of the issue, more work needs to be done within the Committee. The USA was of the opinion that only by reaching consensus of fundamental norms can the member states exercise the more challenging issues. Group B reiterated the need for the text(s) to be “non-binding, flexible and very clear”.
Design Law Treaty Diplomatic Conference
The WIPO General Assembly was called upon to make a decision on another WIPO norm setting activity and to decide whether to convene a diplomatic conference for the adoption of a Design Law Treaty in 2014.
Work on industrial designs has been on going in the Standing Committee on the Law of Trademarks (SCT) since 2005. Developing countries have been making textual suggestions in the SCT, however an important consideration is the inclusion of a specific provision on technical assistance and capacity building. Developing countries including DAG and the African Group are of the opinion that capacity building and technical cooperation should be addressed properly, in an article that should be an integral part of the instrument. There has been resistance by Group B to including this provision in the draft articles as the Group prefers a resolution instead.
During the GA, developing countries expressed support for the negotiation process in general, but reiterated that for a positive outcome there needed to be an adequate inclusion of a TA provision in the Treaty text. Group B was of the opinion that the text was “mature” for a Diplomatic Conference to be held in 2014. Russia also offered to host the proposed Diplomatic Conference in June 2014.
This Item was subject to informal consultations.
However no decision was reached by the General Assembly and this was on the agenda of the Extraordinary Session in December. The Extraordinary Assembly decided that the SCT should finalize its work on the text of the basic proposal for a Design Law Treaty. The Extraordinary Session of the General Assembly to be held in May 2014 will take stock of and consider the text, progress made and decide whether to convene a diplomatic conference in 2014 in Moscow. If the Assembly decides to convene a diplomatic conference, a preparatory committee for the diplomatic conference will be held immediately after the Extraordinary Assembly in 2014.
Standing Committee on Copyright and Related Rights (SCCR) Work Program
The discussions during the GA focused on the future work plan of the SCCR and the determination of priorities. There are currently three on going norm setting activities within the SCCR:
(i) work on an international treaty for the protection of broadcasting organizations and work on two instruments relating to exceptions and limitations to copyright for:
(ii) libraries and archives
(ii) educational, teaching and research institutions and persons with other disabilities.
Developing countries were generally supportive of having a discussion on broadcasting organizations but stressed that SCCR’s work should prioritize work in the area of exceptions and limitations. India, Thailand, Iran stated that any discussion on broadcasting organizations should strictly adhere to the 2007 GA mandate for a “signal based” approach to ensure that provisions on signal theft in themselves did not give broadcasters additional rights over programme content. DAG also expressed the wish that work in broadcasting would take into account the Development Agenda. Algeria, on behalf of the African Group noted that the positive spirit of the Marrakesh Treaty should inspire work in other exceptions and limitations in the SCCR.
The EU stated that the current copyright system provided an adequate framework for exceptions and limitations for educational and research institutions and persons with other disabilities and for libraries and archives. The EU was of the opinion, that the way forward in terms of the work program in this area was an exchange of best practices and ideas.
During the GA, the Group of Central European Baltic States (CEBS) presented a proposal which outlined the schedule for the completion of work with regard to the treaty on broadcasting organizations. The proposal directed the GA to “accelerate and finalize the work on the broadcaster’s treaty as a matter of priority” and that within three SCCR meetings planned prior to the 2014 GA, no less than three days per meeting is devoted on refining the text on broadcasting organizations. It also called for the GA to direct that the SCCR submit to the GA 2014 a text developed during these meetings and for the GA to decide on the convening of a Diplomatic Conference in 2015.
This proposal had the support of countries such as US, EU, Japan and Poland. However, DAG stated that it was not in a position to accept the CEBS proposal and queried as to how the proposed work program would affect SCCR’s work on other issues.
This agenda item was also subject to informal consultations and no decision was reached. Following informal consultations by the Chair of the Assemblies, it was decided that the SCCR should continue its current work and no new mandate was given in terms of the proposal by the CEBS group.
Committee on WIPO Standards (CWS)
The WIPO Committee on Standards was created in 2009 and is responsible for work on the revision and development of WIPO standards relating to industrial property information.
During the WIPO General Assembly, developing countries again raised the issue of the full implementation of the coordination mechanism of the DA and the need for the CWS to report to the CDIP on its development orientation. This has been consistently resisted by Group B which has stated that the CWS was not a “relevant body” for the purposes of reporting on its implementation of the DA.
Brazil stated that the CWS should coordinate with the CDIP and that the member states should find a simple and efficient mechanism to allow the CWS to develop its work with full compliance to the Development Agenda.
The Chair of the GA had circulated a draft decision which proposed that subject to further instructions given by the GA in 2014 regarding the coordination mechanism, the CWS should continue its work in accordance with the present system, as decided by the GA in 2011.
The draft decision was not approved by the GA. The Extraordinary session of the General Assembly decided that the CWS should continue its work based on its current mandate.
Implementation of WIPO Language Policy
The 2013 WIPO GA approved the recommendation of the PBC that the Secretariat continue to apply the measures to further reduce the number and average length of working documents; and to commence the six-language coverage known as the WIPO Language Policy, for the documentation for the Working Groups, in a “phased and cost effective manner”, during the biennium 2014/2015.
In 2010 and 2011 the Assemblies had considered the WIPO Language Policy and approved the recommendation of the PBC that the language coverage for meetings of WIPO main bodies, committees and working groups, and core and new publications, be extended to the six official UN languages (Arabic, Chinese, English, French, Russian, Spanish) in a phased manner from 2011.
During the General Assembly, the US said it had reluctantly agreed for the Secretariat to extend the 6-language policy for the documentation for the Working Groups as it was generally opposed to the expansion of language services and the increase in overhead costs.
Developing countries such as Egypt argued that WIPO was an international organization and in this context all member states should be treated equally particularly with regard to the WIPO language policy.
Other Decisions approved by the 2013 GA include the following:
1. The WIPO GA noted the procedural steps with regard to the Appointment of the Director General in 2014 and approved the convening of the WIPO General Assembly on May 8 and 9, 2014.
2. New Members were elected for the Executive Committees of the Paris and Berne Unions, the WIPO Coordination Committee and the Program and Budget Committee.
3. The WIPO GA approved the convening of a Diplomatic Conference for the Adoption of a Revised Lisbon Agreement on Appellations of Origin and Geographical Indications in 2015.
Conclusion
The 2013 Assemblies failed to reach consensus to take decision on key issues, requiring an extraordinary session meeting in December to finalize, among other issues, approval of the Program and Budget and the renewed mandate of the Committee on IP, Genetic Resources, Traditional Knowledge and Folklore. This outcome reflects a deep division between the North and the South on the direction that WIPO should take. This is the second time since the adoption of the WIPO Development Agenda that the General Assembly has not been able to conclude and the Program and Budget has not been adopted during the General Assembly.
In view of the decisions taken by the WIPO Assemblies, the following are key issues to be addressed in WIPO in 2014: decision on establishing new external offices and guiding principles for the same; future of the process on the Design Law Treaty discussions in the SCT to be decided by the extraordinary session of the WIPO General Assembly in May 2014; the future of discussions in the SCCR for a treaty on exceptions and limitations for libraries and archives, and for educational and research institutions; the outcome of discussions on a broadcasting treaty in the SCCR; adoption of a balanced work program in the SCP; decision of the General Assembly on a Diplomatic Conference for an international legal instrument(s) on TK, TCE and GRs; advancing discussions on WIPO governance reform; independent evaluation of the implementation of the WIPO Development Agenda recommendations and reform of WIPO’s technical assistance.
As WIPO member States will elect a new Director General to lead the WIPO Secretariat, it will be important for developing countries to engage in the process to ensure that the leadership has the vision and development orientation to be able to implement internal reform and assist member States to arrive at a balanced norm-setting.
By the South Centre’s Innovation and Access to Knowledge Programme (IAKP) team
