WIPO Update – CDIP meeting ends without clear signs of progress while debate in the Standing Committee on Copyrights stalls over exceptions

March 16, 2008

Following up on the recent activities at WIPO, I finally sifted through my recent emails from the A2K, public knowledge, IP Watch, and KEI lists. Between the fact that WIPO was busy last week and that most of the folks writing about it are lawyers, this post got a little out of hand. Apologies for the length, but it was helpful for me to work through it all. Here goes…

Gwen Hinze over at the Electronic Frontier Foundation has a detailed post about the WIPO CDIP meetings that just wrapped up at the end of last week.

Her analysis of the fine art of bureaucratic wrangling is insightful, so I’ll just quote it:

Most of the first two days focused on whether government representatives should begin discussions with the subset of 19 of the 45 proposals that were classed as “immediately implementable” because they did not appear to require additional financial or human resources to implement (indicated in yellow here), or with the remaining set of 26 proposals, for which the WIPO secretariat had proposed activities that would require assessment of additional financial and human resource costs.

This seemingly benign procedural discussion actually has great significance. Discussions were focused on the list of activities proposed by the WIPO Secretariat for implementation of the group of 26 proposals. The goal: to provide the Secretariat with a list of projects for which it could produce a cost estimate. However there was no consideration of any benchmarks or timelines to permit evaluation of progress toward meeting the intent of the recommendations. This is a serious omission. Without some type of benchmarks and evaluation process, there will be no mechanism for Member States to enforce their expectations for what should come from WIPO’s commitments,

In addition, there was almost no discussion of the second list, which contains the activities currently being undertaken by WIPO in relation to the 19 “immediately actionable” proposals. There was no evaluation of whether the activities that the WIPO Secretariat is currently undertaking are in accord with the spirit and intent of the Development Agenda. This lead to the uncomfortable perception that existing WIPO activities might automatically be considered to be development-oriented, or as one Member State so aptly put it, that this committee is engaged in an elaborate process of rubber stamping WIPO’s existing activities as Development Agenda-compliant.

Great points there, Gwen! Thanks for keeping the rest of us informed, too. This process has come so far since 2004, but there’s still a long road ahead.

On a similar note, Ahmed Abdel Latif at IP Watch articulated why the success of the WIPO development committee has big implications for the WTO and the TRIPS agreement.

Turns out, three of the WIPO Secretariat’s recommendations to the CDIP explicitly target TRIPS. I spaced Latif’s sentences out to make them a little more readable:

Recommendation 14 stipulates that “within the framework of the agreement between WIPO and the WTO, WIPO shall make available advice to developing countries and LDCs [least developed countries], on the implementation and operation of the rights and obligations and the understanding and use of flexibilities contained in the TRIPS agreement.”

Recommendation 40 requests WIPO “to intensify its cooperation on IP related issues with UN agencies, according to member States orientation, … and other relevant international
organisations, especially WTO in order to strengthen the coordination for
maximum efficiency in undertaking development programs.”

Recommendation 45 on enforcement points to approaching “intellectual property enforcement in the context of broader societal interests and especially
development-oriented concerns” making reference to Article 7 of the TRIPS
agreement.

In other words, this UN governing body believes it can exercise oversight at the WTO. It’s a little hard to see how that would play out in practice, but if the CDIP becomes a forum through which the low and middle income country reps can organize a strategy to bring into the next round of WTO negotiations, that would be fine by me. In the meantime, I say they should push back against TRIPS by whatever means possible. Such a stance may sound overly radical to some, but it makes sense in a context where the notion of increased “flexibilities” under debate in the CDIP was forcefully interpreted by the Chair and WIPO staff to imply TRIPS+ level rigid IP enforcement regimes. As Brazilian representative Antonio Patriota pointed out at the time, that’s not flexibility in any sense. Sangeeta Shashikant’s report published in SUNS has more details how this played out.

Elsewhere in WIPO, activity at the Standing Committee on Copyrights stalled out in a debate over copyright limits and exceptions. My summary is largely taken from the email updates sent out over the A2K email list. The list is public, but I did not ask any of the authors’ permission to publish their statements, so I won’t quote directly.

It turns out the wealthy countries (in WIPO they go under the name, “Group B”) led by the US and the EU flat out refused to discuss the possibility of creating copyright exceptions for blind people, libraries, and educational institutions. They also want to add a whole bunch of items to the agenda that will make it less likely that a discussion about exceptions and limitations ever gets off the ground in the future. The following is a cherry-picked portion of US representatives statement:

We’re please to deliver Group B position on future work of the
committee.

Group B reaffirms long standing commitment to informed robust
discussion of complex copyright and policy issues.  This commitment is
more important than ever.  The unfinished business, the broadcasting
and audiovisual treaties should remained on the agenda for the short
term.

Group B carefully considered Chile’s proposal on Limitations and
Exceptions as set forth in sccr/12/3 and sccr/13/5.

Any future work must be focused on copyright owners and creators.

…There is no consensus to continue.

Got that? He said “focused on copyright owners and creators.”

In other words, blind school children don’t merit further consideration, but copyright owners and creators do. It’s a good thing the electorate of the U.S. doesn’t pay any attention to these debates otherwise the elected people in our government might have hell to pay

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